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TMI Blog1999 (8) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... rate the dying declaration projected by the prosecution in this case would not stand the test of credibility. There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth. In Tapinder singh v. State of Punjab {1971 (1) SCR 599} this Court, by following an earlier decision in Kushal Rao vs. State of Bombay {1958 SCR 582) has reminded the courts that a dying declaration should be subjected to very close scrutiny. Following observations were also made by this Court: 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoved to a Government hospital. On the same day by about 12 noon, PW-12 - a Judicial Magistrate of 1st Class, recorded Lakshmi Devis dying declaration which he reduced to writing (Ext.P-11). The Sub Inspector of police (PW-19) went to the hospital and recorded her statement (Ext. P-14). In both the dying declarations she attributed to the appellant and his mother for the cause of her devastating burns. During trial appellant adopted the stand that Lakshmki Devi had some mental imbalance and also suicidal tendencies. On an earlier occasion, it was elicited, she made an attempt to electrocute herself but the imminent calamity was averted by the timely intervention of others who switched off the power supply. According to the defence, on the date of occurrence she would have either committed the act by herself or she would have caught fire accidentally while cooking food articles. The defence also alleged that two of her cousins Narayana Reddy and Anki Reddy were at loggerheads with the appellant and they had tutored Lakshmi Devi to speak against the accused to the authorities. Except the Judicial Magistrate and the Sub Inspector of Police all the other witnesses examined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent. The relevant portion is extracted below: My mother-in-law's name is Narayanamma, my husband's name is Dandu Lakshmi Reddy. In the morning at 6.00 a.m. when I was sweeping, my mother-in- law Narayanamma and my husband Laxmi Reddy both poured kerosene on me, lit the match-stick and set me to fire. The above material divergence between two dying declarations pertaining to the occasion for launching the murderous attack on the deceased did not create any impression in the minds of the learned judges of the High Court, as they have observed thus: Though there is a difference in the version of the deceased as to what she was doing at the relevant point of time the fact remains that A-1 and A-2 poured kerosene and lit fire to her. These aspects are mentioned in Ex.P.11 P.14. Therefore, we are unable to agree with the contention of the learned counsel for the accused appellants. Thus the High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of dying declaration is a restricted area, the court cannot afford to sideline such a material divergence relating to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 cannot be thrown out. Section 162 of the Code of Criminal Procedure (for short the Code) interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. Of course, this Court has said in Raghunandan v. State of U.P. (AIR 1974 SC 463) that power of the court to put questions to the witness as envisaged in Section 165 of the Evidence Act would be untrammeled by the interdict contained in Section 162 of the Code. The following observations in the aforesaid decision, in recognition of the aforesaid power of the court, would be useful in this context: We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Sec. 165 India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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