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DHARMASHASTRA NATIONAL LAW

UNIVERSITY, JABALPUR
(Session 2020-2021)

Answering The Question of Reliability Where There are

Two Contradictory and Judicially Recorded Dying
Declarations: Makhan Singh V. The State of Haryana
Submitted To: Submitted By:
Mr. Gautam Gupta Sanskrati Jain
[Assistant Professor BAL/116/20
of Law] Semester VI (Sec. B)
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ACKNOWLEDGEMENT
The completion of this project required counselling and assistance from many people and I
am really thankful towards them for their counselling in my project.

I would like to express my deep gratitude towards my teacher asst. professor Mr. Gautam
Gupta, who took acute interest in my project and guided me all along. I am feeling extremely
privileged to have him as my instructor in the project. I owe my deep gratitude to the vice-
chancellor Prof. (Dr.) V. Nagraj for his valuable support throughout the project. This project
helped me in gathering a lot of knowledge and becoming more aware of things related to my
topic.

I would like to extend my gratefulness to my parents and friends for their valuable support
and advice.

I am making this project not only to get marks but also to enhance my knowledge. At the end

I would like thank everyone who helped me and invested their valuable time for this project .

Sanskrati Jain
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TABLE OF CONTENTS

Introduction...........................................................................................................4
Brief Facts of the Case..........................................................................................5
Arguments Advanced...........................................................................................6
Judgement And Ratio Decidendi..........................................................................7
Conclusion............................................................................................................8
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Answering The Question of Reliability Where There Are Two

Contradictory and Judicially Recorded Dying Declarations:
Makhan Singh v. The State of Haryana, 2022

INTRODUCTION
As per Section 32(1) of Indian Evidence Act, 18721, defines dying declaration as a statement
written or verbal of relevant facts made by a person, who is dead. It is the statement of a
person who had died explaining the circumstances of his death. This is based on the
maxim ‘nemo mariturus presumuntur mentri’ i.e., a man will not meet his maker with a lie on
his mouth. The grounds of admission under a dying declaration have been based on the
principles that the victim being generally the only principal eye-witness to the crime.
The sense of impending death, which creates a sanction equal to the obligation of an oath in a
court. A dying declaration may in several cases be the primary piece of evidence to prove the
genesis of occurrence. The only requirement for such a declaration to be held perfectly
accountable in court is for the victim to volunteer the statement and be of conscious mind.
The person who records the dying declaration must be satisfied that the victim is in a fit state
of mind. Normally the court, in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration, can look up the medical opinion. But where the eye
witness has said that the deceased was in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail.

Law regarding multiple dying declarations has been well settled as per the various decisions
delivered by the Hon’ble supreme Court of India time and again. In such cases reliability of
such statements must be measured very carefully. In Kundula Bal Subrahmanyam and
others v. State of Andhra Pradesh2 it was observed that:

“If there are more than one dying declaration than the court has also to scrutinize all the
dying declarations to find out if each one of these passes the test of being trustworthy. The
Court must further find out whether the different dying declarations are consistent with each
other in material particulars before accepting and relying upon the same”

1
The Indian Evidence Act, 1872, No. 01, Acts of Parliament, 1872 (India).
2
Kundula Bal Subrahmanyam and others v. State of Andhra Pradesh, 1993 SCC (2) 684
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Where all the dying declarations are consistent with each other i.e., there are no
inconsistencies in such statements then same can be relied upon after scrutinizing their
veracity with the surrounding circumstances and corroboration with other evidences. On the
contrary if there are inconsistencies in the multiple dying declarations, in such cases Supreme
Court in case of Sudhakar v. State of Madhya Pradesh3 held that: -

“where the multiple dying declarations are either contradictory or are at variance with each
other to a large extent, the test of common prudence would be, to first examine which of them
is corroborated by other prosecution evidence further the attendant circumstances, the
condition of the deceased at the relevant time the medical evidence, the voluntariness and
genuineness of the statement made by the deceased, physical and mental fitness of the
deceased and possibility of the deceased being tortured are some of the factors which would
guide the exercise of judicial discretion by the court in such matters”

In Kushal Rao V State of Bombay4 case Court set out the important rules relating to dying
declaration and the right process or manner to record it. It held that if the dying declaration
made by the deceased should be recorded in question answer form, it shall be
endorsed/supported by the doctor that the deceased was in good mental state. Moreover, it
can be recorded by the person who is legally entitled to record. And in case there are multiple
dying declarations they can be reliable when it made without corroboration if consistency is
maintained throughout the statement. Otherwise, the courts would have to cross-examine the
statements of other witnesses to determine the truth in a criminal trial. In order to pass the test
of reliability, a dying declaration must be subjected to a very close scrutiny, keeping in view
the fact that the statement has been made in the absence of the accused who had no
opportunity of testing the veracity of the statement by cross-examination.

BRIEF FACTS OF THE CASE

Makhan Singh has been convicted under Section 304-B5 of the Indian Penal Code (IPC) for
causing the death of his wife, Manjit Kaur, by subjecting her to cruelty, torture, and dowry
harassment. It is alleged that Makhan Singh had demanded dowry from Manjit Kaur's parents
and had received Rs.30,000 from them. He had also demanded Rs.2 lakhs from them and had
used the money to go to Moscow. After returning from Moscow, he had again subjected

3
Sudhakar v. State of Madhya Pradesh, (2012) 7 SCC 569
4
Kushal Rao V State of Bombay, 1958 AIR 22
5
Indian Penal Code, 1860, § 304-B, No. 45, Acts of Parliament, 1860 (India).
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Manjit Kaur to torture and demanded Rs.6 lakhs from her parents, after this deceased
consumed poisonous substance and was admitted to the hospital.

Two dying declarations were recorded therein, one on the day of the incident and the other on
24th April 1998. In the first dying declaration, the deceased stated that she was suffering
from a fever and accidentally took a medicine of green colour that was lying on the Angithi.
But in the second dying declaration, which was recorded after the parents of Manjit Kaur
arrived there and in her declaration, she had alleged that Makhan Singh and his parents had
administered the poison to her. Based on the second dying declaration, the police filed a FIR,
but upon completion of investigation, the Investigating Officer found the accused innocent,
but believed there were sufficient grounds for trial and therefore, he filed the charge-sheet.
The trial court, based on the second dying declaration convicted Makhan Singh under Section
304-B of the IPC and sentenced him to 10 years of rigorous imprisonment. The High Court
confirmed the conviction but reduced the sentence to 7 years. Makhan Singh has now
approached the Supreme Court to challenge the judgment of the High Court and his
conviction therein.

ARGUMENTS ADVANCED

 From Appellants End

 The appellant argued that the High court failed to take into consideration the first
dying declaration by the deceased wherein she stated that she mistakenly had those
poisonous drugs.
 Moreover, the second dying declaration which was recorded after the parents of
deceased Manjit Kaur instigated her to implicate the appellant, hence it was not
voluntary in nature and vitiated by the act of deceased’s parents.
 As it is a case of conflicting dying declarations, the accused is entitled to get benefit of
doubt. Hence the High court’s order of conviction deserves to be set aside.
 From State’s End
 As there are two dying declarations both duly recorded, so each of the dying
declarations must be appreciated independently and not together.
 The earlier courts have rightly found that the first dying declaration was given by the
deceased Manjit Kaur under the influence of her husband, whereas the second dying
declaration was given by her independently out of her free will.
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 As the both the Trial Court and High Court reached the same findings of the fact that
led to the conviction of appellant. Hence, in the case of the concurrent findings of fact
the Supreme court should not interfere.

JUDGEMENT AND RATIO DECIDENDI

The Supreme Court set aside the High Court and the Trial Court Judgements and orders and
acquitted the appellant of all the charges charged with. Court found that the appellant’s facts
and circumstances of the present case, the first dying declaration will be more reliable and
trustworthy as against the second one. Moreover, such a case the benefit of doubt which has
been given to the other accused by the trial court, ought to have been equally given to the
present appellant when the evidence was totally identical against all the three accused.

Court referred to various cases Harjit Kaur v. State of Punjab6, Sayarabano v. State of
Maharashtra7, Sher Singh v. State of Punjab8, Munnawar v. State of U.P.9, Lakhan v. State
of M.P.10, Sudhakar v. State of M.P.11, Raju Devade v. State of Maharashtra12, Kashmira
Devi v. State of Uttarakhand13 and State of U.P. v. Veerpal14 relied upon the law regarding
dying declaration which has been summarized in the case of Lakhan v. State of M.P.15,
wherein the Court said that if the dying declaration passes the test of reliability, i.e., has been
recorded by a person at a time when the deceased was fit physically and mentally to make the
declaration and it has not been made under any tutoring/duress/prompting. Moreover, it can
be the sole basis for recording conviction. In such an eventuality no corroboration is required.
In case there are multiple dying declarations and there are inconsistencies between them,
generally, the dying declaration recorded by the higher officer like a Magistrate can be relied
upon, if there is no circumstance giving rise to any suspicion about its truthfulness. In case
there are circumstances wherein the declaration had been made, not voluntarily and even
otherwise, it is not supported by the other evidence, the court must scrutinise the facts of an
individual case very carefully and take a decision as to which of the declarations is worth
reliance.

6
Harjit Kaur v. State of Punjab (1999) 6 SCC 545
7
Sayarabano v. State of Maharashtra (2007) 12 SCC 562
8
Sher Singh v. State of Punjab (2008) 4 SCC 265
9
Munnawar v. State of U.P. (2010) 5 SCC 451
10
Lakhan v. State of M.P. (2010) 8 SCC 514
11
Sudhakar supra note 3, at 5.
12
Raju Devade v. State of Maharashtra, (2016) 11 SCC 673
13
Kashmira Devi v. State of Uttarakhand, (2020) 11 SCC 343
14
State of U.P. v. Veerpal, (2022) 4 SCC 741
15
Ibid.
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In the present case, there are two dying declarations. In her first dying declaration wherein
deceased Manjit Kaur, exonerated the accused and said she mistook the poisonous drugs. On
a specific query being made to her by Magistrate as to whether she has suspicion on anyone,
she has replied in the negative. Moreover, the first dying declaration is also endorsed by
doctor who therein stated that the patient remained conscious throughout her statement and
the Magistrate taking dying declaration also asked deceased’s doctor as to whether she is fit
to make a statement and thereupon, the doctor opined that she was fit to make the statement.
Nobody except Doctor was present there and everyone else was asked to go out. Magistrate
has also stated that she found that deceased Manjit Kaur seemed to be in sound disposing
mind and she was satisfied that the deceased Manjit Kaur was prepared to make statement
voluntarily. Thereafter, only her statement was recorded

To the contrary when the second dying declaration, wherein the deceased implicated the
accused and his family, the magistrate therein did not consider obtaining certificate of fitness
from the Medical Officer to the effect that deceased Manjit Kaur was fit to make a statement.
She has admitted that she did not obtain any opinion from any Medical Officer before
recording the dying declaration. Magistrate also confirmed that the father and sister of
deceased Manjit Kaur were present in the hospital, not in the room where the dying
declaration was recorded.

Hence, the first dying declaration cannot be said to be vitiated and passes all the test of
reliability. Moreover, the possibility of the second dying declaration being given after
tutoring by her relatives cannot be ruled out. Apart from that the testimony of Investigating
Officer who found accused innocent. He said that no witness supported the version detailed
by deceased in her second dying declaration and as per his investigation the second dying
declaration was made by deceased after being tutored by her relatives and it did not contain
the true version of the incident, are also relevant. Moreover, the acquittal of co-accused’s, by
giving them benefit of doubt, and conviction of the appellant, based on very same evidence,
by the trial court was improper.

CONCLUSION
This case has helped in removing an anomaly, by clarifying that the court relies on the dying
declaration recorded after medical examination, in case where there are two or more dying
declarations, contradictory to each other but all recorded by judicial magistrates. It also laid
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down some test as to how the question of reliability should be answered when there are two
or more duly recorded contradictory dying declarations. The tests were also talked about in
case of Lakhan’s case and the Court is required to examine as to: -

 Whether it has been recorded by a person at a time when the deceased was fit physically
and mentally to make the declaration?
 Whether it has been made under any tutoring/duress/prompting?

Furthermore, if the dying declaration is deemed genuine and trustworthy, it may serve as the
only basis for recording a conviction; no other evidence is necessary. The death declaration
recorded by the higher authority, such as a Magistrate, can be trusted if there are many dying
statements and discrepancies between them. This is assuming, however, that there are no
circumstances that might raise any questions about its veracity. The Court is expected to
carefully review the facts of each case and decide which of the declarations is worthy of faith
if the declaration has not been established to have been made willingly and is not supported
by any other evidence.

In toto this judgement helped in establishing a strong principle in law to make the law on
dying declaration clearer and widen its applicability horizon. It is one of those judgements
that established legal precedent and provided guidance for future cases. It not only resolved
the immediate dispute at hand but also set a legal precedent that can be used to guide future
cases that involve similar issues or legal questions. It might have far-reaching consequences
beyond the immediate parties involved in the case and can also influence public policy, shape
public opinion, and impact the lives of millions of people.