APPELLANT/ACCUSED:

SASIKUMAR @ SASI
S/O.THANKAPPAN PANICKER, KATTAKKAL VEEDU, PONPARA CHITTUVEETTU MURI, THOLICODE
VILLAGE, FROM KOCHUKARIKKAKATHIL VEEDU, UP III/452, PONGODE CHITTUVEETTU MURI,
THOLICODE VILLAGE.
BY ADV. SRI.C.RAJENDRAN RESPONDENT/COMPLAINANT:
STATEOF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB

------------- Crl. A. NO. 2618 OF 2008 B -------------------------------
Dated this the 9th day of April, 2014 JUDGMENT K.T.Sankaran, J.

The appellant was convicted in S.C.No.769 of 2003 on the file of the Additional
District and Sessions Judge (Fast Track Court - I), Thiruvananthapuram, for the
offence under Section 302 of the Indian Penal Code and he was sentenced to
undergo imprisonment for life and to pay a fine of `10,000/- and in default, to
undergo simple imprisonment for a period of one year. The appellant challenges
the conviction and sentence. 2. Rajani, (the deceased) was the wife of the
appellant/ accused. The marriage of the appellant and the deceased took place
about twelve years before the incident. Two children were born in that wedlock.
The prosecution case is that the accused suspected the fidelity of his wife Rajani
and he used to torture her. Crl. A. NO. 2618 OF 2008 B :: 2 :: On 24.5.2002,
during night, the accused manhandled and tortured Rajani. On the next day, at
about 1.15 PM, while the deceased was lying down in the house, the accused
poured kerosene on her body and set ablaze her. She sustained 95% burn
injuries. Rajani was taken to the Medical College Hospital, Thiruvananthapuram
by her relatives (PW1, PW3 and PW5). Rajani succumbed to the burn injuries by
about 3.15 AM on 26.5.2002. On getting information about the admission of
Rajani in the hospital, the Sub Inspector of Police, Vithura (PW14) went to the
hospital. PW9, the Assistant Professor, Surgery, who was on duty informed PW14
that the condition of Rajani was serious. PW14 recorded Ext.P1 dying declaration
of Rajani at 2.30 AM on 26.5.2002 in the presence of PW9, PW1 (Ratheesh -
brother of Rajani) and PW3 (Krishnamma - the maternal aunt of Rajani). On the
basis of Ext.P1, PW14 registered Ext.P9 First Information Report against the
appellant/ accused under Section 307 of the Indian Penal Code. At about 3.15 AM
on 26.5.2002, Rajani died at the hospital. 3. On 27.5.2002, the accused was
arrested. He had sustained Crl. A. NO. 2618 OF 2008 B :: 3 :: burn injury on his
right hand. Therefore, he was produced before the Community Health Centre,
Vithura and he was treated there. 4. PW15, Circle Inspector of Police, took over
the investigation. Ext.P2 inquest report and Ext.P3 scene mahazar were prepared
and MO1 to MO7 were seized. He submitted Ext.P13 report to include Section 302
of the Indian Penal Code instead of Section 307 IPC as the offence revealed in the
case. 5. On the side of the prosecution, PW1 to PW16 were examined, Exts.P1 to
P14 were marked and MO1 to MO7 were identified. On the side of the defence,
Exts.D1 to D3 were marked. 6. In Ext.P5 postmortem certificate, the following


ante-mortem injuries were noted: "1. Dermoepidermal burns involving the whole
body except hairy region of scalp and soles. 2. Contusion 0.5x0.2x0.1 cm on the
inner aspect of right side of lower lip 2.5 cm inner to the right angle of mouth.
Crl. A. NO. 2618 OF 2008 B :: 4 :: 3. Contusion 1x1x0.2 cm on the inner aspect
of right side of upper lip 1 cm inner to the right angle of mouth." In the
postmortem certificate, the opinion as to cause of death is shown thus: "Death
was due to dermoepidermal burns involving 95% of body surface." 7. The
evidence in the case reveals that around three months before the date of
occurrence, the accused and Rajani had shifted to the place in Tholicode Village
where PW1 to PW5 are residing. It is also alleged by the prosecution that the
accused suspected that the deceased had illicit relationship with one Thambi and
that was why the residence was shifted to Tholicode Village. The case put forward
by the accused in defence was that Rajani committed suicide by pouring kerosene
and by self immolation. The accused and the deceased were residing in a
thatched shed with only a single room. Ext.P3 scene mahazar shows that pieces
of charred cloth and mat with pieces of flesh were found in the room. A can
containing kerosene was also found in the room. Crl. A. NO. 2618 OF 2008 B :: 5
:: 8. PW1 is the brother of the deceased. He is residing very close to the house of
the deceased. He heard the cry of Rajani that she was being killed. PW1 rushed
to the spot. The accused took a stone in his hand and asked PW1 not to enter
into the place. PW1 stated that at that time, PW5 Surendran also came to the
place. The deceased was running around the house crying for help. Other persons
also came to the scene of occurrence. The accused went inside the house.
Somebody provided a cloth for the deceased. A car was brought and she was
taken to the hospital. PW1 also stated about Ext.P1 dying declaration given by
the deceased. 9. PW2 Rejitha is the sister of the deceased. Her residence is very
close to the residence of the deceased. PW2 also stated that the accused
prevented others from entering into the compound and later he went inside the
house. In cross examination, PW2 stated that instead of rescuing the deceased,
the accused was preventing her from escaping. Crl. A. NO. 2618 OF 2008 B :: 6
:: 10. PW3 Krishnamma, the maternal aunt of the deceased, stated that when
she came to the scene of occurrence the deceased were being taken to the
hospital. PW3 also joined PW1 and PW5. She stated that the accused did not
accompany the deceased to the hospital. She stated that Rajani told her while at
the hospital that the accused poured kerosene on her body and set fire. Rajani
also disclosed to PW3 about the cruelty meted out to her by the accused on the
previous night. PW3 also stated about the deceased having furnished Ext.P1
dying declaration. 11. PW4 Maniyan, a neighbour, stated that when he went near
the door of his house, he saw Rajani engulfed in fire and she had no dress on her
body. 12. PW5, the son-in-law of PW3 and a neighbour, stated that on hearing
the cry of Rajani he went to the place and at that time, the accused was trying to
forcibly take Rajani into the house. He also stated that the accused tried to
prevent him and PW1 from entering into the compound. PW5 shouted and asked
the accused Crl. A. NO. 2618 OF 2008 B :: 7 :: to leave Rajani and when people
assembled there, the accused went inside the house. PW5 stated that on the
previous night, there was a quarrel between the accused and Rajani but he did
not interfere fearing abuse by the accused. While going to the hospital, Rajani
disclosed to PW5 that when she was lying down, the accused poured kerosene
and set ablaze her. This part of the evidence of PW5 was not challenged in cross
examination. 13. PW14, Sub Inspector of Police, stated that the duty doctor in


the Medical College Hospital stated that the condition of Rajani was serious but
she could speak. Accordingly, PW14 recorded Ext.P1 dying declaration of Rajani in
the presence of the doctor and witnesses. The thumb impression of Rajani was
taken in Ext.P1. The doctor is also a witness to Ext.P1. In Ext.P9 FIR, it was
recorded that since the presence of the Magistrate could not be procured without
delay, the Sub Inspector of Police recorded the dying declaration of Rajani. In
Ext.P1 dying declaration, Rajani stated clearly about the incident and the details
of the incident. She also stated that the accused suspected that Rajani had illicit
Crl. A. NO. 2618 OF 2008 B :: 8 :: relationship with Thambi, the cousin brother of
Rajani, and on account of that suspicion, the accused did the crime. Rajani also
stated in Ext.P1 that on the previous night the accused tortured her making
allegation about the alleged illicit relationship between Rajani and Thambi. The
accused was under the influence of alcohol. Rajani stated in Ext.P1 dying
declaration that about six months back, the accused had poured kerosene on her
body in an attempt to kill her but she did not inform the police thinking about the
future of her children. 14. The court below held that the evidence of PWs.1, 2, 3
and 5 is trustworthy and that they are natural witnesses. Their evidence was
relied on by the court below to arrive at the conclusion that the accused set
ablaze the deceased after pouring kerosene on her body. 15. The accused raised
a contention before the court below that Ext.P1 dying declaration is not
admissible in evidence as the Doctor (PW9) had not recorded the state of mind of
the declarant. Crl. A. NO. 2618 OF 2008 B :: 9 :: This contention was accepted
by the court below and Ext.P1 was not relied on as a dying declaration. However,
the court below relied on the statements made by the victim to PW3 and PW5 as
to how she sustained burn injuries, as those declarations were made immediately
after the occurrence. The court below treated those declarations as "oral dying
declaration or res gestae under Section 6 of the Evidence Act". 16. The court
below criticized the casual manner in which PW8 Doctor examined the victim at
the Medical College Hospital and issued Ext.P4 wound certificate. In Ext.P4 wound
certificate, the history and alleged cause of injury was recorded as "alleged
suicidal burning at 1.15 PM on 25.5.2002 at her own house". The word "suicidal"
was struck out and it was corrected as homicidal. The correction was initialed by
the Doctor. PW8 stated in evidence that the patient was drowsy while she was
taken to the hospital and she had sustained 80% burns. He could not say in
evidence as to why he used the word "suicidal". At the same time, PW8 stated in
clear terms that the correction was made immediately Crl. A. NO. 2618 OF 2008
B :: 10 :: under his signature. In Ext.P4, the time of examination of the victim
was not noted. 17. Sri.C.Rajendran, learned counsel appearing for the appellant,
submitted the following: In Ext.P4 wound certificate, the time of examination by
the Doctor was not mentioned. The evidence of PW3 would disclose that the Sub
Inspector of Police was available in the hospital by about 9 PM, while PW14, the
Sub Inspector of Police, stated that he reached at the hospital by about 2.30 AM
on 26.5.2002. It is contended that PWs.1, 2, 3 and 5 are inimical towards the
accused. Ext.P1 dying declaration was recorded a few minutes before the death of
Rajani. It is not proved that she was mentally fit to make such a statement. The
dying declaration should have been taken by a Judicial Magistrate. The dying
declaration made to the Sub Inspector of Police is not admissible in evidence.
Learned counsel submitted that the theory that a person facing death will not tell
lie since he would not meet his Maker and face the judgment with a lie in his
mouth, will not apply to Hindus as there is no belief among Hindus that after


death Crl. A. NO. 2618 OF 2008 B :: 11 :: he will meet his Maker and he will have
to account for his deeds and face the judgment. 18. As stated above and as
noticed by the court below, in Ext.P4 wound certificate the time of examination by
the doctor is not mentioned by PW8. However, the victim was examined by PW9,
Assistant Professor, Surgery, and he was present at the time when the victim
made Ext.P1 dying declaration to PW14. The consistent version of the witnesses
is that the victim was taken to the hospital immediately after the incident. The
accused remained at his house. He did not even show the courtesy to go to the
hospital and to attend to his wife. The evidence of PWs.1, 2, 3 and 5 that the
victim was taken to the hospital immediately after the incident was not
challenged in cross examination by the accused. Therefore, non- recording of the
time of examination of the victim by PW8 does not assume much importance. We
concur with the view taken by the court below that PW8 Doctor did not handle the
situation with maturity and that he made a casual approach. PW8 did not take
care to fill up the columns in the accident-cum-wound certificate. Crl. A. NO.
2618 OF 2008 B :: 12 :: The importance of the wound certificate in medico-legal
cases was emphasized by one of us (KTS(J)) in Raju v. State of Kerala and
another (2009 (3) KLT 718) wherein it was held thus: "8. In medico legal cases,
the wound certificates are highly relevant. The wound certificate has to be duly
proved in accordance with law. The Courts would rely on the wound certificates
for the purpose of disposal of the cases. To comprehend the nature and
magnitude of the offence, it is necessary to understand the nature of the injuries
sustained by the victims. If the wound certificates are illegible and if they do not
contain the relevant details, the Courts would not be in a position to properly
appreciate the evidence and effectively dispose of the cases. Even in the matter
of considering regular bail applications and applications for anticipatory bail,
reliance is often placed on the accident register-cum-wound certificate. It is
noticed that in many of the cases which came up for consideration during the last
two months, the wound certificates were incomplete, illegible and were not
properly prepared. In many of the certificates, abbreviations, marks and signs
were seen used, which are normally known only to medical practitioners. The
Medical Officers and the persons who are responsible for issuing the wound
certificates do not seem to take proper care to fill up all the relevant columns and
to incorporate all the relevant details therein. This would cause great difficulty for
the Crl. A. NO. 2618 OF 2008 B :: 13 :: Courts while considering and disposing of
the matters pending before them. The accused persons are entitled to get a copy
of the accident register-cum-wound certificate along with the copy of the papers
to be given to them. They also must be in a position to understand the contents
of the wound certificates. Otherwise, it could be contended that there was no
proper communication of the contents of the wound certificates." 19. We are of
the view that the statement of PW3 Krishnamma that the police came to the
hospital by 9 PM need not be a ground to disbelieve Ext.P1 dying declaration
which was recorded at 2.30 AM on the next day. PW3 is aged 56 and she is a
coolie. The evidence of PW3 when read as a whole would clearly indicate that at
the time of recording Ext.P1, the Police Officer, the Doctor (PW9), PW1 and PW3
were present and they put their signature in Ext.P1. There is also no case for the
accused that the thump impression in Ext.P1 is not that of the victim or that it
was taken after the death of the victim. 20. The contention that PWs.1, 2, 3 and
5 were inimical Crl. A. NO. 2618 OF 2008 B :: 14 :: towards the accused and that
was why they deposed against the accused cannot be accepted at all since no


suggestion was made to any of those witnesses that such an enmity existed at
any point of time. 21. The contention put forward by the learned counsel for the
appellant that Rajani (the victim) was not able to speak at 2.30 AM and that she
had no mental state of mind to make such a statement is devoid of merit. PW9
stated in evidence in clear terms thus: "Throughout I was listening the dying
declaration supplied by the victim. The victim affixed thumb impression in my
presence. The victim was conscious and oriented." In cross examination, PW9
stated that ordinarily matters relating to the fitness of the victim would be stated
in the case sheets. He reiterated that the statement given by the victim was a
voluntary one. There is no reason to disbelieve the evidence given by PW9. Crl. A.
NO. 2618 OF 2008 B :: 15 :: 22. Now we shall deal with the contention raised by
the learned counsel for the appellant that Ext.P1 dying declaration is not
admissible in evidence as it was not recorded in the presence of or by a Judicial
Magistrate. In Vikas and others v. State of Maharashtra ((2008) 2 SCC 516 : AIR
2008 SC (Supp) 1356), the Supreme Court held, relying on the decision in
Khushal Rao v. State of Bombay (AIR 1958 SC 22 : 1958 SCR 552), that where a
dying declaration is recorded by a competent Magistrate, it would stand on a
"much higher footing". A competent Magistrate has no axe to grind against the
person named at the dying declaration of the victim and in the absence of
circumstances showing anything to the contrary, he should not be disbelieved by
the Court. In Ravi Chander and others v. State of Punjab ((1998) 9 SCC 303), the
dying declaration recorded by an Executive Magistrate, which was sent to the
investigating officer after a fortnight was accepted on the ground that in the
absence of any circumstance or material on record to suspect that the Executive
Magistrate had any animus against the person or in any way interested in
fabricating the dying declaration, it ought to be accepted. In Koli Chunilal Savji
and another v. State Crl. A. NO. 2618 OF 2008 B :: 16 :: of Gujarat ((1999) 9
SCC 562), the Supreme Court held that the requirement of the Doctor's
endorsement as to the mental fitness of the deceased in the dying declaration
was only a rule of prudence and the ultimate test was whether the dying
declaration was truthful and voluntary. The decision in Koli Chunilal Savji and
another v. State of Gujarat ((1999) 9 SCC 562) was quoted with approval in
Vikas and others v. State of Maharashtra ((2008) 2 SCC 516). 23. In Kanaksingh
Raisingh Rav v. State of Gujarat (JT 2002 (9) SC 629), the wife of the accused
stated in her dying declaration that her husband poured kerosene and set fire on
her. The dying declaration was made to the doctor and the doctor recorded the
same at the request of the police. No thumb impression or signature of the
deceased was taken since the same could not be done because of the excessive
burns on her body. The contention put forward on behalf of the accused that the
dying declaration recorded by the doctor cannot be relied on, was negatived by
the Supreme Court. Crl. A. NO. 2618 OF 2008 B :: 17 :: 24. Bapu v. State of
Maharashtra (2007 CRI.L.J.310) was a case of bride burning. Dying declarations
were made before the Executive Magistrate, before the police and to the
relatives. The victim had sustained 88% burns. The doctor stated that the victim
was speaking in an audible voice and she was in a position to speak. After
referring to the various decisions of the Supreme Court including the decision in
Paniben v. State of Gujarat ((1992) 2 SCC 474), the Supreme Court held that
there was no reason to doubt the veracity of the dying declaration especially
since there was consistency between all of them. 25. In Paniben v. State of
Gujarat ((1992) 2 SCC 474), the Supreme Court summed up the various


principles. It was held that there is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. If the Court is satisfied
that the dying declaration is true and voluntary, it can base conviction on it
without corroboration. Where dying declaration is suspicious, it should not be
acted upon without corroborative evidence. Merely Crl. A. NO. 2618 OF 2008 B ::
18 :: because a dying declaration does not contain the details as to the
occurrence or it is a brief statement, it should not be rejected. 26. In State of
Karnataka v. Shariff (AIR 2003 SC 1074), the victim made a dying declaration
that her husband poured kerosene on her and set her on fire. The statement was
made to the doctor and to the Sub Inspectors of Police. The Supreme Court held
that the three dying declarations were wholly trustworthy. The High Court had
rejected the dying declarations on the ground that the dying declarations were
not recorded by a Magistrate. In that context, the Supreme Court held thus: "21.
It is true that PW 11 and PW 14 were Police personnel and a Magistrate could
have been called to the hospital to record the dying declaration of Muneera
Begum, however, there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate. In Bhagirath v. State of Haryana, AIR 1997
SC 234 on receiving message from the hospital that a person with gun shot
injuries had been admitted a head constable rushed to the place after making
entry in the police register and after obtaining certificate from the Crl. A. NO.
2618 OF 2008 B :: 19 :: doctor about the condition of the injured took his
statement for the purposes of registering the case. It was held that the statement
recorded by the head constable was admissible as dying declaration. Similar view
was taken in Munnu Raja and Anr. v. State of Madhaya Pradesh, 1976 (2) SCR
764, wherein the statement made by the deceased to the investigating officer at
the police station by way of First Information Report, which was recorded in
writing, was held to be admissible in evidence." 27. In Charipalli Shankararao v.
Public Prosecutor, High Court of Andhra Pradesh,Hyderabad (AIR 1995 SC 777),
the victim had sustained 90% burn injuries. The doctor sent intimation to the
local Judicial Magistrate to record the dying declaration of the victim, but the
Magistrate was not available. A Police Head Constable recorded the dying
declaration. Rejecting the contention that the dying declaration cannot be relied
on, the Supreme Court held thus: "8. ..... It may usefully be pointed out here
that in the case of Ramawati Devi v. State of Bihar, AIR 1983 Crl. A. NO. 2618 OF
2008 B :: 20 :: SC 164, it was observed by this Court that there is no
requirement of law that a dying declaration must necessarily be made to a
Magistrate. What evidentiary value or weight has to be attached to such
statement must necessarily depend on the facts and circumstances of each
particular case. As discussed by us above, in the present case an attempt was
made to procure the services of a Magistrate for recording the dying declaration
but the Magistrate was not available and the dying declaration Ext. P5 had to be
recorded by the Head Constable which fact finds support from several witnesses
including independent witnesses. We have, therefore, no hesitation in accepting
the same. The High Court was, fully justified in accepting the said dying
declaration." 28. In Ramawati Devi v. State of Bihar (AIR 1983 SC 164), the
Supreme Court held that dying declaration made to and recorded by a police
officer can be acted upon. It was held thus: "7. .... A statement, written or oral,
made by a person who is dead as to the cause of his death or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the
cause of that Crl. A. NO. 2618 OF 2008 B :: 21 :: person's death comes into


question, becomes admissible under section 32 of the Evidence Act. Such
statement made by the deceased is commonly termed as dying declaration. There
is no requirement of law that such a statement must necessarily be made to a
Magistrate. What evidentiary value or weight has to be attached to such
statement, must necessarily depend on the facts and circumstances of each
particular case. In a proper case, it may be permissible to convict a person only
on the basis of a dying declaration in the light of the facts and circumstances of
the case. In the instant case, the dying declaration has been properly proved. It
is significant to note that in the course of cross- examination of the witness
proving the dying declaration, no questions were put as to the state of health of
the deceased and no suggestion was made that the deceased was not in a fit
state of health to make any such statement. The doctor's evidence also clearly
indicates that it was possible for the deceased to make the statement attributed
to her in the dying declaration in which her thumb impression had also been
affixed. ...." 29. In Smt.Laxmi v. Om Prakash and others (AIR 2001 SC 2383),
the Supreme Court held: Crl. A. NO. 2618 OF 2008 B :: 22 :: "29. A dying
declaration made to a police officer is admissible in evidence, however, the
practice of dying declaration being recorded by Investigating Officer has been
discouraged and this Court has urged the Investigating Officer availing the
services of Magistrate for recording dying declaration if it was possible to do so
and the only exception is when the deceased was in such a precarious condition
that there was no other alternative left except the statement being recorded by
the Investigating Officer or the police officer lateron relied on as dying
declaration. ...... " 30. In the present case, the dying declaration was recorded at
2.30 AM on 26.5.2002. The victim died at 3.15 AM on the same day. The dying
declaration was recorded by the Sub Inspector of Police (PW14) in the presence
of Dr.Reghukumar (PW9), who was the Assistant Professor of Surgery, Medical
College Hospital, Thiruvananthapuram. PW1 and PW3 also put their signature as
witnesses in the statement given by the victim. When PW9 was cross examined,
there was no suggestion that he was not present or that he did not put his
signature. PW9 stated in clear terms that he "was listening the dying declaration
supplied by the victim" and the Crl. A. NO. 2618 OF 2008 B :: 23 :: victim affixed
her thumb impression in his presence. PW9 also stated that the victim was
conscious and oriented. There was no suggestion in cross examination that the
victim was not conscious or that she was not oriented and she was not capable of
giving a voluntary statement. PW5 stated in evidence that while taking the victim
to the hospital, the victim narrated the incident to him. There was no cross
examination of PW5 on that point. The presence of PW9, PW1 and PW3 at the
time of recording the dying declaration was not challenged by the accused in
cross examination. We are of the view that the court below was not right in not
relying on the dying declaration made by the victim. It is true that even without
relying on Ext.P1 dying declaration, the court below came to the conclusion that
the evidence of the other witnesses can be relied on to find the accused guilty.
However, we are of the view that Ext.P1 dying declaration can very well be
accepted as a true and voluntary statement made by the victim. The evidence of
PWs.1 to 5 is reliable and convincing. There is no reason to doubt the truthfulness
of the evidence tendered by them. We concur with the view taken by the court
below that the evidence of these witnesses can be relied Crl. A. NO. 2618 OF
2008 B :: 24 :: on to arrive at the conclusion that the accused committed the
offence. 31. The doctrine of dying declaration is indicated in legal maxim "nemo


moriturus praesumitur mentire" (a man will not meet his Maker with a lie in his
mouth). The contention of the learned counsel for the appellant is that this
doctrine as such will not apply to Hindus as there is no belief that a Hindu will
meet after death his Maker. The learned counsel drew the distinction between the
English law and the Indian law on the point. In Kishan Lal v. State of Rajasthan
(AIR 1999 SC 3062), the Supreme Court discussed the distinction between
evaluation of dying declaration under the English law and under the Indian law
and held thus: "18. Now we proceed to examine the principle of evaluation of any
dying declaration. There is distinction between the evaluation of dying declaration
under the English law and that under the Indian law. Under the English law,
credence and the relevancy of a dying declaration is only when person making
such statement is in hopeless condition and expecting an imminent Crl. A. NO.
2618 OF 2008 B :: 25 :: death. So under the English law for its admissibility, the
declarant should have been in actual danger of death at the time when they are
made, and that he should have had a full apprehension of his danger and the
death should have ensued. Under the Indian law the dying declaration is relevant
whether the person who makes it was or was not under expectation of death at
the time of declaration. Dying declaration is admissible not only in the case of
homicide but also in civil suits. Under the English law, the admissibility rests on
the principle that a sense of impending death produces in a man's mind the same
feeling as that of a conscientious and virtuous man under oath. The general
principle on which this species of evidence are admitted is that they are
declarations made in extremity, when the party is at the point of death, and when
every hope of this world is gone, when every motive to falsehood is silenced, and
the mind is induced by the most powerful considerations to speak only the truth.
If evidence in a case reveals that declarant has reached this state while making
declaration then within the sphere of the Indian law, while testing the credibility
of such dying declaration weightage can be given. Of course depending on other
relevant facts and circumstances of case." Crl. A. NO. 2618 OF 2008 B :: 26 ::
32. A dying declaration made by a person on the verge of his death has a special
sanctity as at that solemn moment a person is most unlikely to make any untrue
statement. The shadow of impending death is by itself guarantee of the truth of
the statement of the deceased regarding circumstances leading to his death. (See
Narain Singh v. State of Haryana (AIR 2004 SC 1616 = JT 2004(2) SC 327) and
Babu Lal v. State of M.P.((2003) 12 SCC 490). 33. Section 32 of the Indian
Evidence Act embodies the principles of dying declaration. The relevant part of
Section 32 reads as follows: "32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is relevant.-- Statements, written or
verbal, of relevant facts made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances
of the case, appears to the Court unreasonable, are themselves relevant facts in
the following cases:-- Crl. A. NO. 2618 OF 2008 B :: 27 :: (1) When it relates to
cause of death.-- When the statement is made 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, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was
not, at the time when they were made, under expectation of death, and whatever
may be the nature of the proceeding in which the cause of his death comes into
question. ...... ........" 34. In Sharad Birdhichand Sarda v. State of Maharashtra


(AIR 1984 SC 1622), a three Judge Bench of the Supreme Court considered the
distinction between English law and Indian law with particular reference to
Section 32 of the Indian Evidence Act and held thus: Crl. A. NO. 2618 OF 2008 B
:: 28 :: "18. Before closing this chapter we might state that the Indian law on the
question of the nature and scope of dying declaration has made a distinct
departure from the English law where only the statements which directly relate to
the cause of death are admissible. The second part of Cl. (1) of S. 32, viz., "the
circumstances of the transaction which resulted in his death, in cases in which the
cause of that person's death comes into question" is not to be found in the
English Law. This distinction has been clearly pointed out in the case of Rajindra
Kumar v. The State, AIR 1960 Punjab 310, where the following observations were
made: "Clause (1) of Sec. 32 of the Indian Evidence Act provides that
statements, written or verbal, of relevant facts made by a person who is dead,
......... are themselves relevant facts when the statement is made 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, in case, in which the cause of that person's death
comes into question ............It is well settled by now that there is difference
between the Indian Rule and the English Rule with regard to the necessity of the
declaration having been made under expectation of death. Crl. A. NO. 2618 OF
2008 B :: 29 :: In the English Law the declaration should have been made under
the sense of impending death whereas under the Indian Law it is not necessary
for the admissibility of a dying declaration that the deceased at the time of
making it should have been under the expectation of death." 35. The Indian
Evidence Act, 1872 is an Act to consolidate, define and amend the Law of
Evidence. The Indian Evidence Act extends to whole of India except the State of
Jammu and Kashmir and applies to all judicial proceedings in or before any Court
except the judicial proceedings excepted in Section 1. Section 2 of the Indian
Evidence Act was repealed by the Repealing Act 1938 (1 of 1938). Section 2 of
the Indian Evidence Act before its repeal provided for repeal of all rules of
evidence not contained in any Statute, Act or Regulation in force in any part of
British India. The repeal of Section 2 of the Indian Evidence Act under a
subsequent Amending and Repealing Act makes no difference because its repeal
does not have the effect of re-enacting the rules which it repealed. Before passing
of the Indian Evidence Act, the rules of Crl. A. NO. 2618 OF 2008 B :: 30 ::
evidence were governed by the Rules of English Common Law, of the Hindu and
Mohammedan Laws, and the rules of justice, equity and good conscience. The
Indian Evidence Act does not contain the whole law of evidence. The law of
evidence contained in other statutes making specific provisions would also apply
in cases where such statutes are applicable. So long as no other statute which
provides for a separate rule of evidence in the case of Hindus is brought to our
notice, it has to be held that the rules of evidence as provided in the Indian
Evidence Act would apply to all citizens of India in the territories to which it apply,
irrespective of the religion of the party or parties concerned. Section 32 of the
Indian Evidence Act in particular would apply to all the citizens irrespective of
their religion, caste and creed. If it were to be held that Section 32 and the
principles of dying declaration would not apply to Hindus, we are afraid it would
offend Article 14 and 15 of the Constitution of India besides being contrary to the
spirit of Article 44 of the Constitution of India. Crl. A. NO. 2618 OF 2008 B :: 31
:: 36. Now we shall deal with the contention that there is no concept for Hindus
that they would meet their Maker after their death. In Garuda Purana, under the


heading "gdID5 ", the 'Yamamarga' is depicted. It would be profitable to extract a
few verses, to meet the contention put forward by the counsel. Chapter I verse
26:

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