1 - Apellant - T01

TEAMCODE: 01
IN THE HON’BLE HIGH COURT OF BOMBAY
BEFORE THE CHIEF JUSTICE AND OTHER PUISINE JUDGES OF THE COURT
THE CRIMINAL APPEAL FILED UNDER SECTION 378 OF THE CODE OF CRIMINAL
PROCEDURE OF INDIA
IN CRIMINAL APPEAL NO.: _ OF 2022
STATE OF MAHARASHTRA …APPELLANT
VERSUS
MR. Y …RESPONDENT
13th DADA NARI GURSAHANI FESTIVAL - VIDHI MANTHAN STATE LEVEL

VIRTUAL MOOT COURT COMPETITION
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
MOST RESPECTFULLY SUBMITTED
COUNSEL FOR THE APPELLANT

TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................................................................... 3
STATEMENT OF FACTS .......................................................................................................................... 10
STATEMENT OF ISSUES......................................................................................................................... 11
SUMMARY OF PLEADINGS ................................................................................................................... 12
ARGUMENTS ADVANCED ..................................................................................................................... 15

1. Whether it is necessary to issue medical certificate before recording the dying declaration
necessarily? .....................................................................................................................................................
2. Whether the dying declaration not recorded by the Magistrate can be relied upon in the
circumstances of the present case? ...............................................................................................................
3. Whether dying declaration by itself is sufficient for conviction or needs corroboration with
other evidences? .............................................................................................................................................
4. Whether conduct of the accused of absconding for few hours be a circumstance against the
accused? ..........................................................................................................................................................
5. Can the dying declaration recorded by the father be rejected because he was father of the
deceased? (Interested witness)
6. Whether few missing points in the dying declaration with regard to the incident be prejudicial
to the case of the State?
PRAYER ...................................................................................................................................................... 41
Page 2
MEMORANDUM FOR THE APPELLANT
INDEX OF AUTHORITIES
1. STATUTES REFERRED
SR. NO. STATUTES REFERRED CITED ON PAGE NO.
1. CONSTITUTION OF INDIA PASSIM

2. THE INDIAN PENAL CODE,1860 PASSIM
3. THE CODE OF CRIMINAL PROCEDURE,1973 PASSIM
4. INDIAN EVIDENCE ACT, 1872 PASSIM
2. TABLE OF CASES
NAME OF THE CASES AND ITS RELEVANT PAGE
CITATIONS NUMBER
(REPORTED JUDGMENTS)
1. Abdul Sattar v. Mysore State, AIR 1955 SC 168 25 and 39
2. Amitava Banerjee and Ors. vs State of West Bengal (2011) 12 SCC 554 32
3. Cherlopalli Cheliminabi Saheb and another vs. State of Andhra 22

Pradesh,(2003) 2 SCC 57
4. Chirra Shivraj v. State of A.P (2010) 14 SCC 444 40
5. Dalip Singh v. State of Punjab, AIR 1953 SC 364 36
6. Dhan Singh vs. State of Haryana, (2010) 12 SCC 277 22
7. Harbans Singh and Another v. The State of Punjab AIR 1962 SC 439 25
8. Khushal Rao v. State of Bombay, AIR 1958 SC 22 24
9. Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562 17
10. Kundula Bala Subrahmanyam Vs State of A.P 1993 SCC (2) 684 28
11. Kusa & Ors vs State of Orissa (1980) 2 SCC 207 18
Page 3
27
12. Laltu Ghosh v. State of West Bengal, (2019) 15 SCC 344
18
13. Laxman vs. State of Maharashtra, (2002) 6 SCC 710
27
14. Lumba v. State, AIR 1952 Raj 155
34
15. Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567
26 and 40
16. Muniappan vs State Of Madras, AIR 1962 SC 1252
29
17. Munnu Raja V. State of M.P., (1976) 3 SCC 104
23
18. Padmaben Shamalbhai Patel v. State Of Gujarat, 1991 SCC (1) 744
19
19. Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh, (1997) 7
SCC 695
34
20. Parmeshwar Das Bhura vs State of M.P, 2022 SCC OnLine MP 791
34
21. Piara Singh v. State of Punjab, (1977) 4 SCC 452
19
22. Prabin Ali v. State of Assam, (2013) 2 SCC 81
23. Puran Chand v. State of Haryana (2010) 6 SCC 566 37

24. P.V. Radhakrishna v. State of Karnataka (2003) 6 SCC 443 36
25. Rambai v. State of Chhattisgarh (2002) 8 SCC 83 20
26. Ravi Chander v. State of Punjab (1998) 9 SCC 303 19
27. Seeman alias Veeranam v. The State (2005) 11 SCC 142 43
28. Shamim Vs. State (NCT of Delhi) reported in (2018) 10 SCC 509 35
29. Shama vs State of Haryana (2017) 11 SCC 535 21
Page 4
30. State of Chhattisgarh v. Village Kayatpali, Police Station Basna, District 31

Mahasamund 2022 SCC OnLine Chh 1021
31. State of Gujarat v/s Laxmanbhai Lakhabhai Pratapbhai Thakor and 35

others- 2022 livelaw (Guj) 28
32. State of Madhya Pradesh Vs. Dal Singh and others (2013) 14 SCC 159 23
29
33. State of U.P. v. Ram Sagar Yadav (1985 (1) SCC 552
34. State of U.P. V. Madan Mohan, (1989) 3 SCC 390 21
35. Shudhakar vs State Of M.P (2012) 7 SCC 569 19
36. Surajdeo Oza vs. State of Bihar (1980 Supp. SCC 769), 39
37. Surendra Bangali and Surendra Singh vs State Of Bihar 2009 SCC OnLine 29
Jhar 1026
38. Sudamna Sheoba vs King Emperor 1950 CriLJ 224 27
39. Tarseem Kumar vs Delhi Administration 2022 SCC OnLine Chh 1021 30
40. Tanua Rabidas v. State of Assam, (2014) 12 SCC 587 29
41. Tapinder Singh vs State of Punjab,1971 SCR (1) 599 17
42. Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 28
43. Umakant v. State of Chattisgar, (2014) 7 SCC 405 29
Page 5
3. TREATISES, BOOKS, REPORTS AND DIGESTS

SR. NO. NAME OF THE TREATISE, BOOK, REPORT AND DIGESTS WITH THE AUTHOR
OR
PUBLISHER
1. COMMENTARY ON THE CONSTITUTION OF INDIA DURGA DAS BASU 8
TH EDITION VOLUME 1
2. COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE RATANLAL

&
DHIRAJLAL 20TH EDITION
3. COMMENTARY ON THE INDIAN PENAL CODE K.D. KAUR 2ND EDITION
4. COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE RATANLAL
&
DHIRAJLAL 34TH EDITION
5. TEXTBOOK OF CRIMINAL LAW BAKER, DENIS J. GLANVILLE
WILLIAMS 3rd EDITION
6. THE HINDU.
7. THE TIMES OF INDIA.
8. LAL BATUK, THE LAW OF EVIDENCE, 22ND EDITION (2018), CENTRAL
LAW AGENCY
9. SOHONI’s CRIMINAL REFERENCER (THIRD EDITION)
VOLUME 1
10. COMMERCIAL’S CRIMINAL LAW MANUAL
Page 6
4. IMPORTANT DEFINITIONS
1. “Appellant” for the purpose of this Memorandum shall stand for ‘State of Maharashtra’.
2. “Respondent” for the purpose of this Memorandum shall stand for ‘Mr. Y’.
5. DYNAMIC LINKS
(OFFICIAL WEBSITES APPROVED BY THE APEX COURT OF UNION OF INDIA)
1. www.manupatra.com
2. www.scconline.com
3. www.judis.nic (Official website of the Supreme Court of India: Unreported Judgments)
4. www.westlawindia.com
Page 7
6. LIST OF ABBREVIATIONS
SR.NO. ABBREVIATIONS FULL FORMS
1. SC Supreme Court
2. SUPRA ABOVE MENTIONED
3. AIR ALL INDIA REPORTER
4. CL CLAUSE
5. Cri. CRIMINAL
6. IPC INDIAN PENAL CODE, 1860
7. Cr.PC CODE OF CRIMINAL PROCEDURE, 1973
8. ART. ARTICLE
9. CO. COMPANY
10. s. SECTION
11. u/s. UNDER SECTION
12. SCC SUPREME COURT CASES
13. SCR SUPREME COURT REPORTER
14. T.N. TAMIL NAIDU
15. U.O. I UNION OF INDIA
16. U.P. UTTAR PRADESH
17. A.P. ANDHRA PRADESH
18. GUJ GUJARAT
19. ALL. ALLAHABAD
20. ALLMR ALL MAHARASHTRA LAW REPORTER
21. MLJ MADRAS LAW JOURNAL
22. MAD. MADRAS
23. MANU MANUPATRA
24. HON’BLE HONOURABLE
Page 8
STATEMENT OF JURISDICTION
The Appellant humbly submits before the Honourable High Court of Bombay that by powers
vested in it by the virtue of Section 378 of Code of Criminal Procedure, it has the inherent
jurisdiction to hear, adjudicate and dispose the instant matter.
378. Appeal in case of acquittal.

(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections
(3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order of acquittal passed by any Court other
than a High Court 2 or an order of acquittal passed by the Court of Session in revision.]
(2) If such an order of acquittal is passed in any case in which the offence has been investigated
by the Delhi Special Police Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation
into an offence under any Central Act other than this Code, the Central Government may also
direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to
the High Court from the order of acquittal.
(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave
of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court,
on an application made to it by the complainant in this behalf, grants special leave to appeal from
the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub- section (4) for the grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other case, computed from the date of that
order of acquittal.
(6) If in any case, the application under sub- section (4) for the grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-
section (1) or under sub- section (2).
Page 9
STATEMENT OF FACTS
1. The deceased X was living with her husband Y, i.e the accused in a row house situated at Navi
Mumbai. They were staying at the house from last three years which was bought by the husband
after securing loan from the bank.
2. The husband Y wanted the deceased X to contribute towards the cost of row house and wanted her
to bring Rs. 10 lacs from her father who was financially sound. The deceased did not agree for the
same because her father had other financial liabilities.
3. There used to be quarrels between the accused husband and the deceased wife and sometimes, the
accused used to physically assault her as she was unwilling to demand money from her father. At
the same time, she was constantly under mental torture because of repeated demands of the
accused.
4. On the date of incident, there was a quarrel between the deceased and the accused picked up a
kerosene stove which was being rarely used and poured that kerosene on the deceased and set her
on fire with his cigarette lighter. Immediately thereafter the accused left the spot.
5. The neighbours witnessed the smoke and called the parents of the deceased. They immediately
came and took their daughter to the hospital. She had suffered 85% burn injuries but was able to
talk though incoherently.
6. The hospital authority intimated the police and by the time police reached the hospital, condition
of the deceased had become precarious. Her father recorded a statement on a piece of paper. The
daughter died before the father could take her thumb impression.
7. The police reached the hospital after sometime and the dead body was sent for post-mortem
examination. The Doctor stated in his report that the deceased had died due to shock following
85% of superficial to deep injuries. In the meantime, the accused reached the hospital and showed
his ignorance about the said incident and he claimed that the deceased must have committed
suicide. From the spot of the incident, stove and cigarette lighter were found which were seized by
the police.
8. After the completion of investigation, charge sheet was filed against the accused for the offences
punishable under sections 302, 498 (A) of Indian Penal Code, 1860 and under the provisions of
Dowry Prohibition Act, 1961. The accused was tried and acquitted by the Trial Court.
Page 10
STATEMENT OF ISSUES
THE ‘APPELLANTS’ SUBMIT THE FOLLOWING ISSUES FOR CONSIDERATION IN THE PRESENT CASE .
necessarily?
2. Whether the dying declaration not recorded by the Magistrate can be relied upon in the
circumstances of the present case?
3. Whether dying declaration by itself is sufficient for conviction or needs corroboration with
other evidences?
4. Whether conduct of the accused of absconding for few ours be a circumstance against the
accused?
5. Can the dying declaration recorded by the father be rejected because he was father of the
deceased? (Interested witness)
6. Whether few missing points in the dying declaration with regard to the incident be prejudicial
to the case of the State?
Page 11
SUMMARY OF PLEADINGS
1. WHETHER IT IS NECESSARY TO ISSUE MEDICAL CERTIFICATE BEFORE

RECORDING THE DYING DECLARATION NECESSARILY?
It is humbly submitted before the Honorable Court that it is not necessary to issue medical
certificate before recording the dying declaration. The mere absence of any endorsement in the
dying declaration by the doctor with regard to fitness of the deceased to make the statement
cannot vitiate its evidentiary value. A dying declaration is admissible in evidence under Section
32(1) of the Indian Evidence Act, 1872. The appellants submit that dying declaration can alone
form the basis for conviction as it has been made voluntarily by the deceased and inspires
confidence. The veracity and truthfulness of the dying declaration is thus established and the
medical certificate is only a rule of caution. Therefore, in relevance to the current matter at hand,
it is not necessary to issue the medical certificate before recording the dying declaration.
2. WHETHER THE DYING DECLARATION NOT RECORDED BY THE MAGISTRATE

CAN BE RELIED UPON IN THE CIRCUMSTANCES OF THE PRESENT CASE?
It is humbly submitted before the Honorable High Court that the dying declaration which is not
recorded by the Magistrate can be relied upon in the circumstances of the present case. The
evidentiary value or weight that can be attached to the declaration depends on the facts and
circumstances of the case. In the present circumstances, where the judicial magistrate was not
present, and the police could not reach when the condition of the deceased had become
precarious, the dying declaration cannot be rejected solely because it was recorded by the father.
Thus, it is humbly contended that the dying declaration is admissible in this Honorable Court.
Page 12
3. WHETHER DYING DECLARATION BY ITSELF IS SUFFICIENT FOR CONVICTION

OR NEEDS CORROBORATION WITH OTHER EVIDENCES?
It is humbly submitted before the Honorable High Court that the dying declaration in itself is
sufficient for conviction and it does not need corroboration with other evidences. The dying
declaration in the present case consists of the major portion of the incident. It is presumed that
truth sits on the lips of a person who is about to die. Although there is no need for any other
evidence, yet the circumstantial evidence has been established by the presence of stove tank and
cigarette lighter at the crime scene. Thus, it is humbly contended before the Honorable Court
that the very purpose of justice will be forfeited if the dying declaration is not admitted, as there
are no other witnesses to the crime except the deceased in the present case.
4. WHETHER CONDUCT OF THE ACCUSED OF ABSCONDING FOR FEW HOURS BE

A CIRCUMSTANCE AGAINST THE ACCUSED?
It is humbly submitted before the Hon’ble Court that the conduct of the accused of absconding
for a few hours can be a circumstance against the accused as it clearly shows the malicious and
cruel intent towards his wife. His act of absconding certainly implies that he had a guilty mens
rea and hence absconded. Acc. to section 106 of the Indian Evidence Act, the burden of proving
the fact that the act of absconding doesn’t imply malicious intention and is irrelevant to the case
lies on the accused itself.
Page 13
5. CAN THE DYING DECLARATION RECORDED BY THE FATHER BE REJECTED

BECAUSE HE WAS FATHER OF THE DECEASED? (INTERESTED WITNESS)
It is humbly submitted before the Hon’ble Court that the dying declaration recorded by the
father cannot be rejected because he was merely the father of the deceased. The dying
declaration is truthful and voluntarily made and therefore can form a basis for conviction and
cannot not be disregarded. It is a known fact that if the evidence of an interested witness does
not suffer from any infirmity as such but the courts require as a rule of prudence, not as a rule
of law, that the evidence of such witnesses should be scrutinized with a little care. Once that
approach is made and the courts are satisfied that the evidence of the interested witness have a
ring of truth such that the evidence could be relied upon without corroboration. Thus, it is
submitted that the dying declaration recorded by the father should be admissible.
6. WHETHER FEW MISSING POINTS IN THE DYING DECLARATION WITH REGARD

TO THE INCIDENT BE PREJUDICIAL TO THE CASE OF THE STATE?
It is humbly submitted before the Hon’ble Court that a few missing points in the dying
declaration with regard to the incident cannot be prejudicial to the case of the State. As the
deceased in her declaration to her father covered the major portion of the incident in writing and
the declaration can be used to demystify the events that transpired prescribe his mens rea which
can be affirmed with his actus reus and help prove both these elements beyond reasonable doubt.
Therefore, it is humbly contended that a few missing points in the declaration cannot regard it
to be prejudicial to the case of the state.
Page 14
ARGUMENTS ADVANCED
It is humbly submitted that,
necessarily?
It is humbly submitted before this Hon’ble Court that in the instant matter, it is not necessary to
issue a medical certificate before recording the dying declaration. A dying declaration is
admissible in evidence under Section 32(1) of the Indian Evidence Act, 1872, which is stated
herewith:
32. Cases in which a statement of relevant fact by a 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: ––
(1) When it relates to the 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.
Page 15
1. The general principle on which the dying declaration is admitted is that the declarations are
made in extremity, when the deceased is at the point of death and when every hope of this world
is gone. A dying declaration enjoys almost a sacrosanct status as a piece of evidence coming as it
does from the mouth of the deceased victim. The dying declaration in the current matter at hand,
is a statement of fact given by ‘X’, the deceased, and the wife of ‘Y’, relating to the cause and
circumstances of homicide. Despite being subjected to mental torture by the husband, and suffering
from 85% of burn injuries, the stout-hearted victim with a sheer hope of being heard, narrated the
incident to her father, although incoherently. The resoluteness of X proves that she was in a fit
condition to delineate the incident that had occurred.
The Hon’ble Supreme Court of India in Tapinder Singh vs State Of Punjab1, (1970) 2 SCC 113
held that the dying declaration is a statement 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 and it becomes relevant under
S.32 (1) of the Indian Evidence Act in a case in which the cause of that person's death comes into
question.
2. X not being the only victim to such heinous acts inflicted by the husband, there have been several
other instances in the lives of countless other victims, where the reliable judiciary system has
rightly administered justice.
3. In Koli Chunilal Savji & Another vs. State of Gujarat2, the Hon’ble Supreme Court held that,
“If the materials on record indicate that the deceased was fully conscious and was capable of
making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely
because the doctor had not made the endorsement that the deceased was in a fit state of mind to
make the statement in question. The ultimate test is whether the dying declaration can be held to
be a truthful one and voluntarily given.”
1
Tapinder Singh vs State Of Punjab, 1971 SCR (1) 599
2
Koli Chunilal Savji & Another vs. State of Gujarat, (1999) 9 SCC 562
Page 16
4. In Kusa v. State of Orissa3, the doctor who had recorded the dying declaration had stated that
the deceased was in a state of shock because he had received a serious injury. Yet, the deceased
had retained his mental faculties. ‘A person on the verge of death is most unlikely to make an
untrue statement. The shadow of immediate death is the best guarantee of the truth of the statement
by a dying person regarding the causes or circumstances leading to his death which are absolutely
fresh in his mind and are untainted or discoloured by any other consideration except speaking the
truth. It is for these reasons that the Statute4 attaches a special sanctity to a dying declaration.’
5. In relevance to the current matter at hand, the deceased managed to narrate ‘major portion’ of
the incident that occurred to her, in front of her father, who was her confidant at that very instance.
So far as the truth of the statements is concerned, it has been widely accepted that a dying
declaration made by a person on the verge of his death is most unlikely to be an untrue one. In this
case, the shadow of impending death is by itself the guarantee of the truth of the statement made
by the deceased regarding the circumstances leading to her death.
6. In the case of Laxman v. State of Maharashtra5, the Hon’ble Supreme Court held that, “The
situation in which a man is on death bed is so solemn and serene, it is the reason in law to accept
the veracity of his statement. What evidential value or weight has to be attached to such a statement
necessarily depends on the facts and circumstances of each particular case. What is essentially
required is that the person who records a dying declaration must be satisfied that the deceased was
in a fit state of mind, then the medical opinion will not prevail nor can it be said that since there is
no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is
not acceptable. A certification by the doctor is essentially, only a rule of caution.”
7. In Shudhakar v. State Of M.P6., the Hon’ble Supreme Court held that medical opinion is
submissive and if the doctor does not have a medical certificate of fitness of mind, it doesn’t mean
that the death declaration is not admissible. Thus, the court accepted the dying declaration as the
person who recorded the declaration was convinced that the deceased was in a fit state of mind
3
Kusa v. State of Orissa, (1980) 2 SCC 207
4
The Indian Evidence Act, 1872
5
Laxman v. State of Maharashtra (2002) 6 SCC 710
6
Shudhakar v. State Of M.P, (2012) 7 SCC 569
Page 17
while giving his death declaration. In the present case, the circumstances indicate that as soon as
‘X’ started narrating the incident, her father recorded it by obtaining a piece of paper from the
hospital authorities. This establishes the fact that the father was aware of the ability of ‘X’ to
narrate the exact incident.
8. In the same judgement, the Hon’ble Supreme Court also held that the observations of the court
in Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh7 to the effect that "In the absence
of a medical certification that the injured was in a fit state of mind at the time of making the
declaration, it would be very much risky to accept the subjective satisfaction of a person who
opined that the injured was in a fit state of mind at the time of making a declaration", has been too
broadly stated and is not the correct enunciation of law.
9.The bench upheld that, “The judgment of this court in Paparambaka Rosamma & Ors. vs. State
of Andhra Pradesh must be held to be not correctly decided and we affirm the law laid down by
this court in Koli Chunilal Savji & Another vs. State of Gujarat8.
10. In Ravi Chander v. State of Punjab9, it had been observed by the Hon’ble Supreme Court that,
for not examining by the doctor, the dying declaration recorded need not be doubted.
11. In Prabin Ali vs State of Assam10, it was held that even when a dying declaration had been
made by the deceased before any relative in a conscious state, and the doctor conducting his or her
post mortem examination has not made a cross-examination about the mental state of the deceased,
even then the dying declaration is considered to be absolutely valid and conviction can be made
on the basis of such declaration.
12. The Hon’ble High Court of Chhattisgarh, in Rambai v. State of Chhattisgarh11, held that
“Dying declaration is an independent piece of evidence like any other piece of evidence, neither
extra strong or weak, and can be acted upon. There is no hard and fast rule of universal application
as to whether percentage of burns suffered is a determinative factor to affect credibility of dying
7
Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh, (1997) 7 SCC 695
8
Koli Chunilal Savji & Another vs. State of Gujarat, (1999) 9 SCC 562
9
Ravi Chander v. State of Punjab, (1998) 9 SCC 303
10
Prabin vs State of Assam, (2013) 2 SCC 81
11
Rambai v. State of Chhattisgarh, (2002) 8 SCC 83
Page 18
declaration and improbability of its recording. Percentage of burns alone would not determine the
probability or otherwise of making a dying declaration. Physical state or injuries on the declarant
do not by themselves become determinative of mental fitness of the declarant to make the
statement.”
Thus, despite suffering from 85% of superficial to deep injuries, it cannot be proved that the
deceased was not in a fit condition to state the dying declaration. Thus, it is humbly contended
that, a medical certificate provided by a doctor is not a condition precedent for placing reliance
upon a dying declaration
Page 19
2. Whether the dying declaration not recorded by the Magistrate can be relied upon
in the circumstances of the present case?
It is humbly submitted before this Hon’ble Court that the dying declaration not recorded by the
Magistrate can be relied upon in the circumstances of the present case. The case at hand very well
highlights that the hospital authority intimated the police in the predicament. Meanwhile, the
condition of ‘X’ was growing precarious, and any further delay in recording her narrative would
have taken away her right to be heard and would have made justice being rendered to her, nearly
impossible. The law does not compulsorily require the presence of a Judicial or Executive
Magistrate to record a dying declaration.
1. A dying declaration can be in any adequate method of communication, provided the indication
is positive and definite. In most cases, such statements are reduced to writing by a magistrate or
a doctor or a police officer. There is no requirement of law that a dying declaration must necessarily
be made to a magistrate, and when such a statement is recorded by a magistrate, there is no specific
statutory form for such recording.
2. In the case of The State of Uttar Pradesh v. Madan Mohan12, the Apex Court held that, “Dying
declaration should be recorded by the executive magistrate. But, it can be recorded by the police
officer only if the condition of the deceased was so precarious that no other alternative was left.”
In relevance to the current matter at hand, it is evident that the plight of ‘X’ was precarious even
before the police arrived, and it has been highlighted that the police arrived after the death of ‘X’,
which sufficiently proves the deteriorating physical condition of the deceased. Despite intimating
the police authority, during the waiting period, no more patience could have been kept, and there
was no other alternative left, than recording of the incident by the father, as narrated by his
daughter, ‘X’.
3. The Hon’ble Supreme Court in Shama vs State of Haryana13 held that, “The law does not
prescribe any format for recording a dying declaration. It also does not prescribe any specific
12
The State of Uttar Pradesh v. Madan Mohan (1989) 3 SCC 390
13
Shama vs State of Haryana (2017) 11 SCC 535
Page 20
authority to record it unless any special law or rule is enacted to that effect. On the other hand, we
find that a perfectly working and neatly structured dying declaration, at times brings about an
adverse impression and creates suspicion in the mind of the Court since the dying declaration need
not be drawn with mathematical precision. All that the law requires is that the declarant should be
able to recollect the situation resulting in the available state of affairs in relation to the incident.”
4. In Cherlopalli Cheliminabi Saheb and another vs. State of Andhra Pradesh 14, it was held by
the Hon’ble Supreme Court that it was not absolutely mandatory that in every case a dying
declaration should be recorded only by a Magistrate. The said position was reiterated by the Court
in Dhan Singh v. State of Haryana15, wherein, it was held that neither Section 32 of the Evidence
Act nor Section 162(2) of the Cr. P. C., mandate that the dying declaration has to be recorded by
a designated or particular person and that, it was only by virtue of the development of law and the
guidelines settled by the judicial pronouncements, that it is normally accepted that such declaration
would be recorded by a Magistrate or by a doctor.
6. In Ramavati Devi vs State of Bihar16, the Patna High Court held, “It cannot possibly be laid
down that a dying declaration which is not made before a Magistrate, cannot be used in evidence.
A statement, written or oral, made by a person who is dead as circumstances which resulted in his
death, in cases in which the cause of that person's death comes into question, becomes admissible
under Section 32 of the Evidence Act. 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
a statement, must necessarily depend on the facts and circumstances of each particular case.”
14
Cherlopalli Cheliminabi Saheb and another vs. State of Andhra Pradesh (2003) 2 SCC 57
15
Dhan Singh v. State of Haryana (2010) 12 SCC 277
16
Ramavati Devi vs State of Bihar, (1983) 1 SCC 211)
Page 21
7. If there is no time to call the magistrate, keeping in view the deteriorating condition of the
declarant, a dying declaration can be recorded by any other person. Even in some situations where
the judicial magistrate or police officer is not available, the Court cannot reject the dying
declaration solely because it was made before a normal person. The statement is admissible in a
court of law. And in the present case, the father of the deceased promptly recorded the description
of the circumstances which led to his daughter’s grave condition.
8. In State of Madhya Pradesh v. Dal Singh and others17, the Hon'ble Apex Court held that, “Law
does not provide who can record a dying declaration, nor is there any prescribed form, format, or
procedure for the same. The person who records a dying declaration must be satisfied that the
declarant is in a fit state of mind and is capable of making such a statement.” The father grasped
the will of ‘X’ to narrate the incident and thus inherently acknowledged her sound state of mind to
make the statements.
9. As the person who has knowledge of the facts mentioned in the declaration is dead, any person
to whom the statement referred to, can give evidence as to what he heard. The reasons for admitting
such evidence are that, it is the best evidence available on record, and the occasion is solemn, and
the dying man is face to face with the person to whom he makes the declaration, without any
motive for telling a lie. Whenever possible a dying declaration should be recorded by a Magistrate.
However, in cases where it is not possible, the declaration can be recorded by any other person.
10. The Hon’ble Supreme Court of India in Padmaben Shamalbhai Patel v. State Of Gujarat18,
observed that, “It is not essential that a dying declaration should be made only before a Magistrate.
Section 32 of the Evidence Act nowhere states that the dying declaration must be recorded in the
presence of Magistrate; and very often the deceased is merely asked as to how the incident took
place and the statement is recorded in a narrative form. In fact, such a statement is more natural
and gives the version of the incident as it has been perceived by the victim.”
17
State of Madhya Pradesh v. Dal Singh and others (2013) 14 SCC 159
18
Padmaben Shamalbhai Patel v. State Of Gujarat 1991 SCC (1) 744
Page 22
In the current instance, ‘X’ narrated the incident to her father, which proves that the dying
declaration was in the most unconcealed form possible.
11. In another case, namely Khushal Rao v. State of Bombay19, the Hon’ble Supreme Court held
that each case must be determined on its own facts, keeping in view the circumstances in which
the dying declaration was made.
Therefore, in relevance to the current matter at hand, it is humbly contended before this
Hon’ble Court that the dying declaration, despite not being recorded by the Magistrate,
can be relied upon.
19
Khushal Rao v. State of Bombay AIR 1958 SC 22
Page 23
3. Whether dying declaration by itself is sufficient for conviction or needs

corroboration with other evidences?
It is humbly submitted before this Hon’ble Court that the dying declaration by itself is sufficient
for conviction of the accused and it does not need corroboration with other evidences. The dying
declaration is a substantive piece of evidence under Section 32 (1) of Evidence Act.
1. Dying declaration is admissible as evidence mainly for three reasons. Firstly, the necessity, the
victim being the sole eye witness of the crime, if the victim's evidence is excluded it would defeat
the ends of justice. Secondly, the declarations made by a person under expectation of death are
presumed to be true. Thirdly, the admissibility of the declaration is based on the maxim; “Nemo
Moriturus Praesumitur Mentire”, which means, a man will not meet his maker with a lie in his
mouth. It is said that truth sits on the lips of a person who is about to die. (P. V. Radhakrishna v.
State of Karnataka20)
2. When every motive to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth, when the situation is so solemn, it is considered by the law as
creating an obligation equal to that which is imposed by a positive oath administered in the court
of justice.
3. In a leading case of Harbans Singh and Another v. The State of Punjab21, the Hon’ble Supreme
Court has held that it is neither a rule of law nor of prudence that a dying declaration requires to
be corroborated by other evidence before a conviction can be based thereon.
4. In Abdul Sattar v. Mysore State22, there was very little direct evidence against the accused but
the circumstantial evidence pointed inevitably to the conclusion that the offence had been
20
P. V. Radhakrishna v. State of Karnataka (2003) 6 SCC 443
21
Harbans Singh and Snother v. The State of Punjab AIR 1962 SC 439
22
Abdul Sattar v. Mysore State AIR (1956) SC 168
Page 24
committed by him. There was also the dying declaration of the deceased which, though incomplete
due to the weakness of the deceased, implied that it was the accused who had shot him with the
gun. Before the case reached the Hon’ble Supreme Court, when it was presented before the
Sessions Court, the sessions judge admitted the dying declaration of the deceased in evidence.
But the Apex Court held that the respected judge wrongly came to the conclusion that the same
was not corroborated by any independent evidence. Thus, not upholding the judgement of acquittal
of the accused passed by the Sessions Court, the Hon’ble Supreme Court acted upon the dying
declaration. In the instant matter as well, the declaration was incomplete owing to the death of ‘X’,
but under section 32 of the Evidence Act, a dying declaration is not required to be signed by its
maker. Also, the stove and cigarette lighter were found during investigation, from the spot of the
incident. ‘X’ had been subjected to constant mental torture and physical assault by the accused
even in the past, for her father’s money, which establishes strong circumstantial evidence as to the
infliction of injuries on the deceased even on the date of the incident.
5. In Ram Nath vs State of Madhya Pradesh23, even though the dying declaration was incomplete,
the Hon’ble Apex Court held that the statements were quite categoric in character and they
definitely indicated that it was the accused who had shot the deceased. In the present case too, a
major portion of the incident had been narrated by ‘X’.
6. In Muniappan v. State of Madras24, the respected judges of the Hon’ble Supreme Court held,
“In our opinion, corroboration would not always be necessary if the dying declaration is complete
in its accusation. In this case, there is evidence of motive in the shape of a quarrel which had taken
place. Despite not considering the thumb impression, in view of all the circumstances we are
satisfied that the evidence in this case is sufficient to warrant the conviction of the appellant on a
charge of murder. The dying declaration is categoric in character and unmistakably accuses the
appellant of the crime.” In relevance to the present matter at hand, a quarrel between the deceased
and the accused did occur before the incident itself. Thus, the circumstantial evidence established
in the case hints towards the commission of the offense by the accused against the deceased. In the
current matter at hand as well, the quarrel before the incident is evidence of motive.
23
Ram Nath vs State of Madhya Pradesh
24
Muniappan v. State of Madras
Page 25
7. In Khushal Rao v. The State of Bombay25, the Hon’ble Supreme Court on a review of the
relevant provisions of the Evidence Act held that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form the sole basis of conviction unless it is corroborated; a real &
voluntary declaration needs no corroboration. The Court also held that each case must be
determined on its own facts keeping in view the circumstances in which the dying declaration was
made and it cannot be laid down as a general proposition that a dying declaration is a weaker kind
of evidence than other pieces of evidence. A dying declaration stands on the same footing as
another piece of evidence and has to be judged in the light of surrounding circumstances and with
reference to the principles governing the weighing of evidence. Once the court has come to the
conclusion that the dying declaration was the truthful version as to the circumstances of the death
of the victim, there is no question of further corroboration.
8. In Sudamna Sheoba vs King Emperor26, it was held that there is nothing in law to say that a
dying declaration should be corroborated. Although the value of a dying declaration of course
depends a good deal on the status, position, and reputation of the declarant. Still, if true, the Court
can act on an uncorroborated dying declaration alone. The same was reiterated in Lumba vs
State27.
9. The Hon’ble Apex Court in the case of Laltu Ghosh v. State of West Bengal28, observed as
under: “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the
sole basis of conviction. A dying declaration, if found reliable, and if it is not an attempt by the
deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the
courts and can form the basis of conviction. More so, where the version given by the deceased as
the dying declaration is supported and corroborated by other prosecution evidence, there is no
reason for the courts to doubt the truthfulness of such dying declaration.
10. In Padmaben Shamalbhai Patel vs State of Gujarat29, the Apex Court observed that a dying
declaration can be acted upon without corroboration. It is only if the circumstances
25
Khushal Rao v. The State of Bombay, AIR 1958 SC 22
26
Sudamna Sheoba vs King Emperor, 1950 CriLJ 224
27
Lumba vs State, AIR 1952 Raj 155
28
Laltu Ghosh v. State of West Bengal, (2019) 15 SCC 344
29
Padmaben Shamalbhai Patel vs State of Gujarat 1991 SCC (1) 744
Page 26
surrounding the dying declaration are not clear or convincing that the Court may, for its assurance,
look for corroboration to the dying declaration. Being an independent piece of evidence like any
other piece of evidence, neither extra strong nor weak, a dying declaration can be acted upon
without corroboration, and in order to form the sole basis for conviction without the need for
independent corroboration it must be shown that the person making it is thoroughly reliable and
free from blemish.
11. In the present case, the victim made no attempts to cover the truth and presented the incident
in the rawest form possible, owing to the popular principle that truth sits on the lips of a person
who is about to die. The circumstances that she had been forced to witness and the pain that she
was suffering from, itself burst forth into the recorded narrative. Thus, the dying declaration is
reliable.
12. In Kundula Bala Subrahmanyam Vs State of A.P.30, it was held that the dying declaration
enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the
deceased victim. It is a very important and reliable piece of evidence and if the court is satisfied
that the dying declaration is true and free from any embellishment, such a dying declaration by
itself can be sufficient for recording the conviction even without looking for corroboration.
13. As held by the Supreme Court in the case of Uka Ram v. State of Rajasthan31, the sense of
death leads to the same feeling which a virtuous man gets under oath, and the principle of
admissibility of dying declaration is based upon this principle. The admission of dying declaration
is made on the consideration that the declaration has been made by the deceased under extremity.
When a person is near death and his hope is gone for this world, then it is a powerful consideration
that he will be speaking the truth. It also held that the statements made by a deceased as to his
cause of death or to any circumstances which resulted into his death or any case where his death
comes into question, is an admissible piece of evidence.
30
Kundula Bala Subrahmanyam Vs State of A.P 1993 SCC (2) 684
31
Uka Ram v. State of Rajasthan (2001) 5 SCC 254
Page 27
14. As held by the Hon’ble Supreme Court in the case of Umakant v. State of Chattisgarh32, a
dying declaration is required to be judged according to the circumstances of the case, and it is
considered to be correct as long as confidence is inspired by it in the mind of the court.
As held by the Hon’ble Supreme Court in the case of Tanua Rabidas v. State of Assam33, where
the death of the deceased occurs by burning by the husband, in such cases, the dying declaration
made by the deceased is considered to be totally true and no evidence is present that can prove the
contrary. Even the absence of kerosene oil in the deceased’s hair cannot render the dying
declaration doubtful.
15. In the case of Munnu Raja v. State of M.P34, it was held that there is neither a rule of law nor
of prudence that dying declaration cannot be acted upon without corroboration. In the case of The
State of U.P. v. Ram Sagar Yadav35, it was held that if the Court is satisfied that the dying
declaration ‘is true and voluntary’ it can base conviction on it; without corroboration. In the present
case, the dying declaration was not elicited by any means. It was voluntarily given by ‘X’ as an
attempt to make her father aware of the truth, despite her state being precarious by then.
16. The Hon’ble Supreme Court in the case of Surendra Bangali Surendra Singh v. State Of
Bihar36 held, “a dying declaration can be made the sole basis to convict an accused if the Court
comes to the conclusion that the dying declaration is free from infirmity and is found to be genuine
and truthful, thus no corroboration by any other evidence is required.”
Therefore, in relevance to the current matter at hand, it is humbly contended before this
Hon’ble Court that the dying declaration is free from infirmities and it can be chosen as the
sole evidence, without the corroboration of any other evidence.
32
Umakant v. State of Chattisgarh (2014) 7 SCC 405
33
Tanua Rabidas v. State of Assam (2014) 12 SCC 587
34
Munnu Raja v. State of M.P (1976) 3 SCC 104
35
The State of U.P. v. Ram Sagar Yadav (1985 (1) SCC 552
36
Surendra Bangali Surendra Singh v. State Of Bihar 2009 SCC OnLine Jhar 1026
Page 28
4. Whether conduct of the accused of absconding for few hours be a circumstance

against the accused?
It is humbly submitted that the conduct of the accused absconding for a few hours can be
circumstanced against the accused.
In the current matter at hand the deceased alleged that the accused had doused the deceased with
kerosene and set her ablaze, further absconded from the scene.
It is stated under Section 7 of the Indian Evidence Act, 187237

Facts which are the occasion, cause or effect of facts in issue. –– Facts which are the occasion,
cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the
state of things under which they happened, or which afforded an opportunity for their occurrence
or transaction, are relevant.
Moreover, Section 8 of the Indian Evidence Act talks about the motive, preparation and previous
or subsequent conducts of the parties and states that
Motive, preparation, and previous or subsequent conduct. –– Any fact is relevant which shows or
constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party,
or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or
in reference to any fact in issue therein or relevant thereto, and the conduct of any person an
offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
When the conduct of any person is relevant, any statement made to him or in his presence and
hearing, which affects such conduct, is relevant.
37
Section 7, Indian Evidence Act, 1872.
Page 29
1. Absconding is defined as leaving hurriedly and secretly, typically to escape from custody or
avoid arrest. In the present circumstances of the case with relation to Section 7 of the Evidence
Act the husband’s whereabouts speak to the occasion of the crime in which evidence can always
be given of the set of circumstances which constituted the occasion for the happening of the
principal fact as every act leaves behind certain effects which not only record the happening of the
act, but also throw light upon the nature of the act.
2. In the given case, the act of absconding of the husband and his whereabouts is circumstantial
evidence therein clearly speaks about the occasion of the crime and the effects thereof, adding to
that with relation to Section 8 of the Evidence Act, it can be said that the accused had a guilty mens
rea, as he subjected his wife to abuse and cruelty and hence the previous conduct of the accused,
the conduct of absconding in relation to the case and the effect of the commission of the crime that
is actus reus clearly points that the husband is guilty.
3. In the case of State of Chhattisgarh v. Village Kayatpali, Police Station Basna, District
Mahasamund38, the Hon’ble High Court took the view that conduct of the accused in absconding
from the spot is also a relevant fact to be considered which has been taken into account by us.
4. In Tarseem Kumar vs Delhi Administration39, the Supreme Court has clearly held that when
the prosecution case is based solely on the circumstantial evidence, the court has to be satisfied
that:
(i) The circumstances from which conclusion of guilt is to be drawn has been fully established.
(ii) All the facts so established are consistent only with the hypothesis of guilt of the accused and
they do not exclude trustworthy or not. But in a case which is based on circumstantial evidence,
the motive for committing the crime on the part of the accused assumes greater importance.
38
State of Chhattisgarh v. Village Kayatpali, Police Station Basna, District Mahasamund, 2022 SCC OnLine Chh
1021
39
Tarseem Kumar vs Delhi Administration 2022 SCC OnLine Chh 1021
Page 30
5. Similarly, in Amitava Banerjee and Ors. Vs. State of West Bengal40 , the Supreme Court has
laid down the principles holding that motive for the commission of an offence no doubt assumes
greater importance in cases resting on circumstantial evidence than those in which direct evidence
regarding commission of the offence is available.
Therefore, it is humbly submitted taking the above-mentioned case laws into consideration
and the fact that the accused absconded for a few hours, the circumstantial evidence of
absconding clearly shows that the accused is guilty.
40
Amitava Banerjee and Ors. Vs. State of West Bengal, (2011) 12 SCC 554
Page 31
5. Can the dying declaration recorded by the father be rejected because he was father
of the deceased? (Interested witness)
It is humbly submitted that the dying declaration recorded by the father of the deceased cannot be
rejected on the grounds that he is an interested witness. The Section 32 of the Indian Evidence Act
talks about the statement of a relevant fact by a person who is dead or cannot be found.
It is further submitted that, under Section 32 of The Indian Evidence Act ,1872
Cases in which a statement of relevant fact by a 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: ––
(1) When it relates to the 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
had arisen.
(5) or relates to existence of relationship---When the statement relates to the existence of any
relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood,
marriage or adoption] the person making the statement had special means of knowledge, and when
the statement was made before the question in dispute was raised.
Page 32
1. An interested witness refers to someone having direct interest in the result of the litigation,
expecting to gain some benefit out of it. Interested witness is a witness who is vitally interested
in conviction of a person due to previous enmity. The "Interested witness" has been defined by
the Supreme Court in the case of Mohd. Rojali Ali v. State of Assam41.
2. It is humbly contended that the father played a very minor part in the given case. He merely
refused to give money to his daughter’s husband due to other financial liabilities so it cannot be
held that he had any enmity towards the husband or had any vested interest in the case. Therefore,
any testimony recorded by him can be deemed independent and truthful.
3. It was held in the case of Parmeshwar Das Bhura Vs. State of M.P42 by the Hon’ble Supreme
Court that-
A witness is normally to be considered independent unless he or she springs from sources which
are likely to be tainted and that usually means unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen
the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there
is personal cause for enmity, that there is a tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and
the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
4. Similarly, in Piara Singh v. State of Punjab, (1977) 4 SCC 452, the Supreme Court held:
It is well settled that the evidence of interested or inimical witnesses is to be scrutinized with care
but cannot be rejected merely on the ground of being partisan evidence. If on a perusal of the
evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying
on the said evidence.
41
Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567
42
Parmeshwar Das Bhura Vs. State of M.P, 2022 SCC OnLine MP 791
Page 33
5. In the case of State of Gujrarat vs. Laxmanbhai Lakhabhai Pratapbhai Thakor and Others43,
The Gujarat High Court said it cannot disbelieve the oral declaration merely because it was given
to by the deceased to her brother, who the defense claimed was an "interested witness".
A dying declaration is considered to be credible and trustworthy based upon the general belief that
most people who know that they are about to die, do not lie...the evidence on record of such
interested sole witness is worth credence, the same would not be discarded merely on the ground
that the witness is an interested witness.
6. The Supreme Court in the case of Seeman alias Veeranam v. State44 while elaborating on the
importance of dying declaration and not giving importance to the fact that the witness is an
interested witness held that “It is now well settled in law that the evidence of a
witness cannot be discarded merely on the ground that he is a related witness or the sole witness,
or both, if otherwise the same is found credible. The witness could be a relative but that does not
mean to reject his statement in totality. In such a case, it is the paramount duty of the Court to be
more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny
it is found that the evidence on record of such interested sole witness is worth credence, the same
would not be discarded merely on the ground that the witness is an interested witness. Caution is
to be applied by the court while scrutinizing the evidence of the interested sole witness.The
Hon’ble Court also said that it is well settled that it is the quality of the evidence and not the
quantity of the evidence which is required to be judged by the court to place credence on the
statement.
7. The Supreme Court in the case of Shamim Vs. State (NCT of Delhi45, was held as under: In a
criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is
given great weightage on the principle that there is no reason for them not to speak the truth and
shield the real culprit.
43
State of Gujrarat vs. Laxmanbhai Lakhabhai Pratapbhai Thakor and Others, 2022 livelaw (Guj) 28
44
Seeman alias Veeranam v. State (2005) 11 SCC 142
45
Shamim Vs. State (NCT of Delhi, (2018) 10 SCC 509
Page 34
8. Thus, if on such scrutiny it is found that the evidence on record of such an interested sole witness
is worth credence, the same should not be discarded merely on the ground that the witness is an
interested witness.
9. Supreme Court in the case of P.V. Radhakrishna vs State of Karnataka46 has held as under:
This is the reason the court also insists that the dying declaration should be of such a 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 prompting or a product of
imagination. The dying declaration is admissible upon consideration that the declarant has made
it in extremity, when the maker is at the point of death and when every hope of this world is gone,
when every motive to the falsehood is silenced and the mind is induced by the most powerful
consideration to speak the truth.
10. The court must be cautious in appreciating and accepting the evidence given by the interested
witnesses but the court must not be suspicious of such evidence. The primary endeavor of the court
must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely
because it comes from the mouth of a person who is closely related to the victim.
11. The Supreme Court in the case of Dalip Singh v. State of Punjab47, observed: A witness is
normally to be considered independent unless he or she springs from sources which are likely to
be tainted and that usually means unless the witness has cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real
culprit and falsely implicate an innocent person.
46
P.V. Radhakrishna vs State of Karnataka (2003) 6 SCC 443
47
Dalip Singh v. State of Punjab47, AIR 1953 SC 364
Page 35
12. The Court held in the case of Puran Chand vs State of Haryana48, that it would not be
unnatural for a burnt woman, to confide in her near relations like her cousin or father.
13. In the circumstances of the present case the father had no reason or motive to lie as all he did
was record the truth in order for justice to be served for his daughter.
Therefore, it is humbly submitted that the dying declaration should not be rejected merely on
the basis that it was recorded by the father of the deceased
48
Puran Chand vs State of Haryana48, (2010) 6 SCC 566
Page 36
6. Whether few missing points in the dying declaration with regard to the incident be
prejudicial to the case of the State?
It is humbly submitted to the Hon’ble Court that the few missing points in the dying declaration
with regard to the incident cannot be prejudicial to the case of the State. Dying declaration is a
written or verbal statement (or in gesture) based on pertinent facts made by a person who died
explaining the cause of his death. Section 32(1) of the Indian Evidence Act,1872 recognizes the
principle of Leterm Mortem which means words before death, the section states “When the
statement is made by a person 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.
Furthermore, the Section 114 of Evidence Act states that:

Court may presume the existence of certain facts. - The Court may presume the existence of any
fact which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts of the
particular case.
Moreover, Section 113B of the Indian Evidence Act, 1872 states that:
Presumption as to dowry death. ––-When the question is whether a person has committed the
dowry death of a woman and it is shown that soon before her death such woman had been subjected
by such person to cruelty or harassment for, or in connection with, any demand for dowry, the
court shall presume that such person had caused the dowry death. Explanation. –– For the
purposes of this section, “dowry death” shall have the same meaning as in section 304B of the
Indian Penal Code (45 of 1860).]
Page 37
1. A dying declaration need not be exhaustive and disclose all the surrounding circumstances. It
cannot be ruled out entirely because of an omission to refer to a particular circumstance of the
transaction. Even though a statement is incomplete as long as the dying declaration unmistakably
points out the guilt of the accused then there is no harm in relying on such incomplete declaration
in relation to Section 114 of Evidence Act and the facts of the present case where the deceased
orated the major part of the incident but failed only to orate minor details in such circumstances
the court may presume the existence of such fact which it thinks likely to have happened.
2. Similarly, In the case of 113B. Presumption as to dowry death in which due to unnatural death
it can be presumed to be dowry death, which is the case in hand, so it can be assumed to be dowry
death in such case, the court can assume the missing points of the dying declaration is in common
intention to the rest of the declaration.
3. It was held in the case of Surajdeo Ojha v. State of Bihar49, by the Hon’ble Supreme Court that
“If it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement
itself guarantees truth.”
4. In one of the landmark cases of incomplete dying declaration i.e Abdul Sattar v. Mysore State50
the Court held that although the dying declaration was incomplete but was quite categoric in
character and definitely indicated that it was the accused in that case who had shot the deceased.
The Court said that the statement in regard to the accused committing the crime was complete in
itself. The dying declaration was, therefore, acted upon.
49
Surajdeo Ojha v. State of Bihar, 1979 Cri.LJ 1122
50
Abdul Sattar v. Mysore State AIR (1956) SC 168
Page 38
5. The Supreme Court also referred to this case in Muniappan vs State of Madras51 and accepted
the dying declaration.
6. In another case of Kusa & Ors vs State of Orissa52, the Apex Court accepted the dying
declaration with the last point missing and said that there is nothing more the deceased could add
and thus the dying declaration was not an incomplete one.
7. In Chirra Shivraj v. State of A.P53, the Apex Court held that the court has to examine a dying
declaration scrupulously with a microscopic eye to find out whether the dying declaration is
voluntary, truthful, made in a conscious state of mind and without being influenced by other
persons and where these ingredients are satisfied, the Court expressed the view that it cannot be
said that on the sole basis of a dying declaration, the order of conviction could not be passed.
been called as a witness and had denied upon cross-examination the truth of the matter suggested.
8. In all the above-mentioned cases, the courts have time and again reiterated that it is not a matter
of importance whether the declaration is complete or not just that the declaration by the deceased
covered the major and relevant portion of the incident or offense which is sufficient enough to
declare the accused guilty.
9. It is humbly submitted that Section 158 of the Evidence Act states that:
What matters may be proved in connection with a proved statement relevant under section 32 or
33. ––Whenever any statement, relevant under section 32 or 33, is proved, all matters may be
proved either in order to contradict or to corroborate it, or in order to impeach or confirm the
credit of the person by whom it was made, which might have been proved if that person had been
called as a witness and had denied upon cross-examination the truth of the matter suggested.
51
Muniappan vs State of Madras on AIR 1962 SC 1252
52
Kusa & Ors vs State of Orissa (1980) 2 SCC 207
53
Chirra Shivraj v. State of A.P (2010) 14 SCC 444
Page 39
10. Keeping the above-mentioned provision in mind, it can be said that even if one statement is
proved the rest can be used to confirm the credit of the person by whom it was made hence, the
missing points could be corroborated with the points already proved in the declaration.
Therefore, it is humbly submitted that a few missing points in the dying declaration with
regard to the incident cannot be prejudicial to the case of the State and the dying declaration
cannot be rejected on this basis.
Page 40
PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is
most humbly prayed and implored before the Hon’ble High Court that it may be graciously
be pleased to adjudge and declare that:
1. The dying declaration is itself sufficient for the conviction of the accused and does not
need corroboration with other evidences.
2. The accused be convicted under section 302 and 498A and sentenced for imprisonment
for life.
And pass any other order, decree or judgment that this Hon’ble Court deems fit in light of
justice, equity and good conscience.
Sd/-
Counsel for the Appellant
Page 41
EXHIBITS
1. Abdul Sattar v. Mysore State, AIR 1955 SC 168

2. Amitava Banerjee and Ors. vs State of West Bengal (2011) 12 SCC 554
3. Cherlopalli Cheliminabi Saheb and another vs. State of Andhra Pradesh,(2003) 2 SCC 57
4. Chirra Shivraj v. State of A.P (2010) 14 SCC 444
5. Dalip Singh v. State of Punjab, AIR 1953 SC 364
6. Dhan Singh vs. State of Haryana, (2010) 12 SCC 277
7. Harbans Singh and Another v. The State of Punjab AIR 1962 SC 439
8. Khushal Rao v. State of Bombay, AIR 1958 SC 22
9. Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562
10. Kundula Bala Subrahmanyam Vs State of A.P 1993 SCC (2) 684
11. Kusa & Ors vs State of Orissa (1980) 2 SCC 207
12. Laltu Ghosh v. State of West Bengal, (2019) 15 SCC 344
13. Laxman vs. State of Maharashtra, (2002) 6 SCC 71
14. Lumba v. State, AIR 1952 Raj 155
15. Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567
16. Muniappan vs State Of Madras, AIR 1962 SC 1252
17. Munnu Raja V. State of M.P., (1976) 3 SCC 104
18. Padmaben Shamalbhai Patel v. State Of Gujarat, 1991 SCC (1) 744
19. Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh, (1997) 7 SCC 695
20. Parmeshwar Das Bhura vs State of M.P, 2022 SCC OnLine MP 791
21. Piara Singh v. State of Punjab, (1977) 4 SCC 452
22. Prabin Ali v. State of Assam, (2013) 2 SCC 81
23. Puran Chand v. State of Haryana (2010) 6 SCC 566
24. P.V. Radhakrishna v. State of Karnataka (2003) 6 SCC 443
25. Rambai v. State of Chhattisgarh (2002) 8 SCC 83
26. Ravi Chander v. State of Punjab (1998) 9 SCC 303
27. Seeman alias Veeranam v. The State (2005) 11 SCC 142
28. Shamim Vs. State (NCT of Delhi) reported in (2018) 10 SCC 509
Page 42
29. Shama vs State of Haryana (2017) 11 SCC 535

30. State of Chhattisgarh v. Village Kayatpali, Police Station Basna, District Mahasamund 2022
SCC OnLine Chh 1021
31. State of Gujarat v/s Laxmanbhai Lakhabhai Pratapbhai Thakor and others- 2022 livelaw (Guj)
28
32. State of Madhya Pradesh Vs. Dal Singh and others (2013) 14 SCC 159
33. State of U.P. v. Ram Sagar Yadav (1985 (1) SCC 552
34. State of U.P. V. Madan Mohan, (1989) 3 SCC 390
35. Shudhakar vs State Of M.P (2012) 7 SCC 569
36. Surajdeo Oza vs. State of Bihar (1980 Supp. SCC 769),
37. Surendra Bangali and Surendra Singh vs State Of Bihar 2009 SCC OnLine Jhar 1026
38. Sudamna Sheoba vs King Emperor 1950 CriLJ 224
39. Tarseem Kumar vs Delhi Administration 2022 SCC OnLine Chh 1021
40. Tanua Rabidas v. State of Assam, (2014) 12 SCC 587
41. Tapinder Singh vs State of Punjab,1971 SCR (1) 599
42. Uka Ram v. State of Rajasthan, (2001) 5 SCC 254
43. Umakant v. State of Chattisgar, (2014) 7 SCC 405
Page 43

1 - Apellant - T01

Uploaded by

Copyright:

Available Formats

1 - Apellant - T01

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

1 - Apellant - T01

Uploaded by

Copyright:

Available Formats

TEAMCODE: 01

IN THE HON’BLE HIGH COURT OF BOMBAY

IN CRIMINAL APPEAL NO.: _ OF 2022

STATE OF MAHARASHTRA …APPELLANT

13th DADA NARI GURSAHANI FESTIVAL - VIDHI MANTHAN STATE LEVEL

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE APPELLANT

INDEX OF AUTHORITIES ......................................................................................................................... 3

STATEMENT OF FACTS .......................................................................................................................... 10

SUMMARY OF PLEADINGS ................................................................................................................... 12

ARGUMENTS ADVANCED ..................................................................................................................... 15

1. CONSTITUTION OF INDIA PASSIM

3. Cherlopalli Cheliminabi Saheb and another vs. State of Andhra 22

23. Puran Chand v. State of Haryana (2010) 6 SCC 566 37

30. State of Chhattisgarh v. Village Kayatpali, Police Station Basna, District 31

31. State of Gujarat v/s Laxmanbhai Lakhabhai Pratapbhai Thakor and 35

34. State of U.P. V. Madan Mohan, (1989) 3 SCC 390 21

35. Shudhakar vs State Of M.P (2012) 7 SCC 569 19

38. Sudamna Sheoba vs King Emperor 1950 CriLJ 224 27

40. Tanua Rabidas v. State of Assam, (2014) 12 SCC 587 29

41. Tapinder Singh vs State of Punjab,1971 SCR (1) 599 17

42. Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 28

43. Umakant v. State of Chattisgar, (2014) 7 SCC 405 29

3. TREATISES, BOOKS, REPORTS AND DIGESTS

2. COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE RATANLAL

(OFFICIAL WEBSITES APPROVED BY THE APEX COURT OF UNION OF INDIA)

SR.NO. ABBREVIATIONS FULL FORMS

378. Appeal in case of acquittal.

1. WHETHER IT IS NECESSARY TO ISSUE MEDICAL CERTIFICATE BEFORE

2. WHETHER THE DYING DECLARATION NOT RECORDED BY THE MAGISTRATE

3. WHETHER DYING DECLARATION BY ITSELF IS SUFFICIENT FOR CONVICTION

4. WHETHER CONDUCT OF THE ACCUSED OF ABSCONDING FOR FEW HOURS BE

5. CAN THE DYING DECLARATION RECORDED BY THE FATHER BE REJECTED

6. WHETHER FEW MISSING POINTS IN THE DYING DECLARATION WITH REGARD

It is humbly submitted that,

3. Whether dying declaration by itself is sufficient for conviction or needs

4. Whether conduct of the accused of absconding for few hours be a circumstance

It is stated under Section 7 of the Indian Evidence Act, 187237

Furthermore, the Section 114 of Evidence Act states that:

Counsel for the Appellant

1. Abdul Sattar v. Mysore State, AIR 1955 SC 168

29. Shama vs State of Haryana (2017) 11 SCC 535

You might also like