In Arun Bhandudas Pawar v. State of Maharashtra, (2008) 11 SCC 232 Court had declined to accept the testimony of an interested witness who happened to be the mother of the victim, in the absence of any corroboration from an independent witness including the Medical Officer who was attending to the victim, to prove that the victim had regained consciousness when the mother had met him in the hospital and had named the accused as the assailant along with two other associates. An additional factor that weighed with the court for rejecting the testimony of the mother was that she had not stated so in her statement recorded by the Police under Section 161 Cr.P.C. and it was for the first time before the Court that she had made such a statement. Holding that the oral dying declaration made by the deceased ought to be treated with care and caution, since the maker of the statement cannot be subjected to any cross-examination, the Court found fault with the High Court and trial Court for having accepted the said oral dying declaration allegedly made by the deceased to her mother, an interested witness, when there was nothing to show that the deceased was in a fit condition to make an oral declaration to his mother.
In Poonam Bai Vs. State of Chhattisgarh, (2019) 6 SCC 145, a similar view was taken by this Court and it was held thus:
“16. As far as the oral dying declaration is concerned, the evidence on record is very shaky, apart from the fact that evidence relating to oral dying declaration is a weak type of evidence in and of itself. As per the case of the prosecution, the deceased had made an oral dying declaration before Lalita Sahu (PW 2), Pilaram Sahu (PW 3), Parvati Bai (PW 4), and others. Though PWs 2, 3 and 4 have deposed that the deceased did make an oral dying declaration before them implicating the appellant, this version is clearly only an afterthought, inasmuch as the same was brought up before the trial court for the first time. In their statements recorded by the police under Section 161 of the Code of Criminal Procedure, these witnesses had not made any statement relating to the alleged oral dying declaration of the deceased. These factors have been noted by the trial court in its detailed judgment. Thus, the evidence of PWs 2, 3 and 4 relating to the oral dying declaration is clearly an improved version, and this has been proved by the defence in accordance with law.”
