Holding

A dying declaration, when proved true and voluntary, can alone sustain a conviction, and the child witness's testimony was credible, so the conviction under s.302 IPC stands.

Summary

Kalawati w/o Devaji Dhote was convicted of murder under Section 302 IPC based on the testimony of a child witness (the deceased's son) and the dying declaration of the victim, Babital. The High Court upheld the conviction and the appellant challenged the judgment before the Supreme Court, arguing that the child’s testimony was unreliable and that a dying declaration requires corroboration. The Court examined the principles governing dying declarations, emphasizing that when such a statement is found true, voluntary and free from tutoring or prompting, it may alone support a conviction without corroboration. It also held that the child witness’s evidence was credible and corroborated by other evidence. Concluding that the dying declaration and child witness testimony were reliable, the Court dismissed the appeal and affirmed the conviction.

Issues considered

Whether a dying declaration can be the sole basis for conviction without corroboration
Whether the testimony of a child witness is admissible and reliable in a murder trial
Whether the dying declaration in this case was voluntary, truthful and free from prompting

Legislation cited

Indian Penal Code, 1860s. 302

Subjects

murderdying declarationchild witnesscorroborationSection 302 IPCconvictionevidentiary standards

Judgment

[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
GANGULY, 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
deceased was not as a result of either tutoring or G
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.

(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
E 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
F 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.
G
(vi) A dying declaration which suffers from '
I

infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does
H contain the details as to the occurrence, it is
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
conscious state to make the dying declaration,
the medical opinion cannot prevail.
t (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
plurality of dying declarations could be held to E
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 Laxmipati Naidu AIR 1981 SC 617; Surajdeo
Oza and Ors. v. State of Bihar AIR 1979 SC 1505; Nanahau
Ram and Anr. v. State of Madhya Pradesh AIR 1988 SC 912;
H
190 SUPREME COURT REPORTS [2009] 3 S.C.R.

>
A State of U.P. v. Madan Mohan and Ors. AIR 1989 SC 1519;
Mohan/a/ Gangaram Gehani v. State of Maharashtra AIR
1982 SC 839 and Mohan Lal and Ors. v. State of Haryana
2007 (9) sec 151, relied on.

Case Law Reference:
B
AIR 1992 SC 1817 relied on Para 6

(1976) 2 SCR 764 relied on Para 6 ..
AIR 1985 SC 416 relied on Para 6
c
AIR 1983 SC 164

AIR 1976 SC 1994
relied on

relied on
Para 6

Para 6
-
1974 (4) sec 264 relied on Para 6
D AIR 1982 SC 1021 relied on Para 6

1981 (2) sec 654 relied on Para 6

AIR 1981 SC 617 relied on Para 6

E AIR 1979 SC 1505 relied on Para 6
AIR 1988 SC 912 relied on Para 6

AIR 1989 SC 1519 relied on Para 6

AIR 1982 SC 839 relied on Para 6
F
2001 (9) sec 151 relied on Para 6

CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 267 of 2009.

G From the Judgment and Order dated 11.4.2007 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in ••
Criminal Appeal No. 126 of 1992.

Kishor Lambat, R.S. Lambat and Deven Lambat for the
H Appellant.
KALAWATI W/O DEVAJI DHOTE v. STATE OF 191
MAHARASHTRA
-<.,
Ravindra Keshavrao Adsure for the Respondent. A
,
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division B
Bench of the Bombay High Court, Nagpur Bench, upholding the
'· conviction of the appellant for offence punishable under Section
.. 302 of the Indian Penal Code, 1860 (in short 'IPC') as was
recorded by the learned Sessions Judge, Wardha, and the
sentence of life imprisonment was awarded. c
3. The prosecution version is as follow:

Appellant was prosecuted for the offence punishable under
Section 302 IPC on the allegations that on 17th March, 1989,
• at about 5.00 P.M. at Mouja Shekapur (Mozari) she committed D
murder by intentionally causing death of Babital, wife of
Pandurang Lokhande on account of a preceding quarrel.
Deceased Babital was residing in the neighbourhood of
appellant at Mouja Shekapur. On the date of incident, her
husband P.W.3 Pandurang had gone to the field of one E
Murlidhar Barade. At about 5.00 P.M. he returned home. He
noticed his wife in the burnt condition. The fire was extinguished
and she was led on the cot. There was quarrel between the
• deceased Babital and the appellant at about 4.00 P.M. which
was witnessed by son of the deceased Sharad (PW 1). The F
quarrel was also witnessed by Bhaurao (PW 2) the neighbour.
After this quarrel and exchange of ugly abuse, the appellant
brought kerosene bottle from her house and poured the same
on the deceased. She also lit her by matchstick from matchbox.
Thus appellant se\' the deceased on fire. When she tried to go G
-', by the side of shed she also caught fire. Shard (PW 1) poured
water on the person of his mother and tried to extinguish the
fire. Meanwhile because of ugly unbearable abuses between
the deceased and the appellant Bhaurao (PW2) had left the
said place. He, however, returned back from his house after
H
KALAWATI W/O DEVAJI DHOTE v. STATE OF 193
MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
-'.' for postmortem. Autopsy was conducted by Dr. Divekar at A
Medical hospital. After due investigation, charge sheet against
the appellant was submitted for the offence under Section 302
IPC, before the court of Judicial Magistrate First Class,
Hinganghat, who in turn committed this case to the court of
Sessions. B
Since the accused person pleaded innocence, trial was
""' held. Nine witnesses were examined to further the prosecution
#
version. Sha rad (PW1) is the eye-witness. Bhaurao (PW2)
is the neighbour of the deceased and the appellant, who after
hearing ugly abuses between the appellant and the deceased
c
went to his house and returned after hearing shouts of Sharad
(PW1). Pandurang is the husband of the deceased. The
accused to establish the plea of innocence examined two
,I
persons. The trial court accepted the evidence of Sha rad (PW1)
as trustworthy and to have been corroborated by the evidence D
" of Bhaurao (PW2) and other evidence on record for the sake
of dying declaration before the police office and the Executive
Magistrate.

Accordingly, the accused was found guilty. In appeal, it was E
stated that PW1 's evidence could not have been accepted
because he was a young boy and PW2's evidence also not
believable. It was primarily stated that PW1 did not tell PW3,
• the father, as to who was the author of the crime. The High Court
found no substance in the stand. The evidence of the child F
.J
witness was cogent and credible.

It is to be noted that the defence took the plea that the
deceased had committed suicide while setting herself on fire
because of the allegation of illicit relations with the saintly
person . G
...
4. In support of the appeal, learned counsel for the
appellant submitted that the evidence of PW1 ought not to be
relied upon. Moreover, he was a child witness. The fact that he
,• did not disclose to his father who was the alleged author of the H
'

-c
194 SUPREME COURT REPORTS (2009] 3 S.C.R.

A crime shows that the prosecution version was based on after '
thought. Learned counsel for the respondent, on the other hand,
supported the judgment.

5. The reason as to why PW1 did not tell PW3 has been -
explained by PW3 himself. The said witness stated PW1 did
B
not disclose him as to how deceased caught fire because he
himself had no time to ask about it and was busy in making ,_
arrangement for taking the injured to the hospital where she
subsequently breathed her last. '
c 6. 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 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
D to inspire full confidence of the Court in its correctness. The ~

Court has to be on guard that the statement of the deceased
was not as a result of either tutoring or 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
E to observe and identify the 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 unless it
F is corroborated. The rule requiring corroboration is merely a
rule of prudence. This Court has laid down in several judgments
the principles governing dying declaration, which could be
summed up as under as indicated in Smt. Paniben v. State of
Gujarat (AIR 1992 SC 1817):
G (i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. t
[See Munnu Raja & Anr. v. The State of Madhya Pradesh •
(1976) 2 SCR 764))

H (ii) If the Court is satisfied that the dying declaration is true .,

..
'

I-
KALAWATI W/O DEVAJI DHOTE v. STATE OF 195
MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

and voluntary it can base conviction on it, without A
corroboration. [See State of Uttar Pradesh v. Ram Sagar
Yadav and Ors. (AIR 1985 SC 416) and Ramavati Devi
v. State of Bihar (AIR 1983 SC 164)]

(iii) The Court has to scrutinize the dying declaration
8
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. [See K.
Ramachandra Reddy and Anr. v. The Public C
Prosecutor (AIR 1976 SC 1994)]

(iv) Where the dying declaration is suspicious, it should not
be acted upon without corroborative evidence. [See
, Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC
264)] D

(v) Where the deceased was unconscious and could never
make any dying declaration, the evidence with regard to
it is to be rejected. [See Kaka Singh v State of M.P. (AIR
1982 SC 1021)]
E
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. [See Ram Manorath and Ors.
v. State of UP. (1981 (2) SCC 654)

(vii) Merely because a dying declaration does contain the f
details as to the occurrence, it is not to be rejected. [See
State of Maharashtra v. Krishnamurthi Laxmipati Naidu
(AIR 1981 SC 617)]

(viii) Equally, merely because it is a brief statement, it is G
•. not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See Surajdeo Oza and
Ors. v. State of Bihar (AIR 1979 SC 1505).
'1
(ix) Normally the Court in order to satisfy whether the
deceased was in a fit mental condition to make the dying H
196 SUPREME COURT REPORTS [2009] 3 S.C.R.

A declaration looks up to the medical opinion. But where the
eye-witness said that the deceased was in a fit and
conscious state to make the dying declaration, the medical
opinion cannot prevail. [See Nanahau Ram and Anr. v.
State of Madhya Pradesh (AIR 1988 SC 912)].
B
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. [See State of UP. v. Madan
Mohan and Ors. (AIR 1989 SC 1519)].
•
C (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 plurality of dying declarations
could be held to be trustworthy and reliable, it has to be
accepted. [See Mohan/al Gangaram Gehani v.State of
D Maharashtra (AIR 1982 SC 839) and Mohan Lal and Ors.
v. State of Haryana (2007 (9) SCC 151).

7. In view of the credible and cogent evidence of PW1 and
the dying declaration, we find no merit in the present appeal
E which deserves dismissal, which we direct.

G.N. Appeal dismissed.

.'