Dying Declaration: Disbelieving the dying declaration recorded (appreciation)

1. With the assistance of the parties, we have perused the evidence and materials placed on record.

Disbelieving dying declaration as tutored one

1. The present case mainly rests on the dying declaration of the deceased. No doubt, that a conviction can be solely recorded on the basis of dying declaration. However, for doing so, the court must come to a conclusion that the dying declaration is trustworthy, reliable and one which inspires confidence. In the present case, the dying declaration is recorded by Shri Sadhu Singh (PW-5), Executive Magistrate. He stated that he obtained the certificate from the doctor regarding the fitness of the deceased to make the statement. He further stated that he recorded the statement of the deceased and thereafter it was read over and explained to her. He further states that she had thumb marked the same after admitting its contents to be correct. In the dying declaration recorded by Shri Sadhu Singh (PW-5), Executive Magistrate, the deceased is said to have stated that on 5th November 1991 at around 12.00 noon, her husband Phulel Singh, i.e., the appellant herein, Jora Singh, father-in-law and Dhan Kaur, mother-in-law caught hold of her. Her husband, the appellant herein put kerosene on her person and set her ablaze. She further stated that when she was set on fire, she raised an alarm but the accused overpowered her.

11. It is relevant to note that the deceased received burn injuries on 5th November 1991 but the dying declaration came to be recorded on 8th November 1991 after an application was made by the relatives of the deceased to the SDM, Ludhiana. Shri Sadhu Singh (PW-5), Executive Magistrate, in his evidence, admitted that the boys, who had brought the application containing the order of the SDM, Ludhiana had told him that the statement of the deceased should be recorded and that she was in a position to make the statement. He further admitted that those boys had told him that whatever they had to tell the deceased, they had told her and that he should accompany them to record her statement. He has further admitted that those 2-3 boys were related to the deceased and some other persons were also in the room in which he recorded the statement of the deceased.

1. It could thus be seen that there is a grave doubt as to whether the dying declaration recorded by Shri Sadhu Singh (PW-5), Executive Magistrate was a voluntary one or tutored at the instance of respondent No.5. It is further relevant to note that Dr. Jatinder Pal Singh (PW-8), in his deposition itself, states that Shri Sadhu Singh (PW-5), Executive Magistrate had recorded the dying declaration of the deceased on 8th November 1991 at 04.40 p.m. whereas the opinion with regard to her fitness was given by him at 06.00 p.m. on 8th November 1991. He has further admitted that he had not mentioned in the bed-head ticket that he had attested the statement of the deceased at 04.40 p.m. on 8th November 1991. It is thus doubtful as to whether Dr. Jatinder Pal Singh (PW-8) had really examined the deceased with regard to her fitness prior to her statement being recorded by Shri Sadhu Singh (PW-5), Executive Magistrate.

2. It is further relevant to note that Dr. Jasmeet Singh Dhir (PW-7) has stated that the history recorded by him while admitting the deceased, was narrated by the deceased herself. He has further stated that the deceased had also narrated that her husband had extinguished fire by pouring water on her.

3. In the totality of the circumstances, it cannot be said that the dying declaration (Ex. P.L.) is free from doubt.

High court also disbelieved dying declaration

1. The most glaring aspect that is required to be considered is that the High Court itself has disbelieved the dying declaration insofar as Jora Singh, father-in-law of the deceased is concerned. We fail to understand as to how the same dying declaration could have been made basis for conviction of the appellant when the same was disbelieved insofar as another accused is concerned.

Disbelieving the facts

1. Insofar as the evidence regarding harassment on account of non-fulfillment of demand of dowry is concerned, the prosecution relies on the evidence of Pavitar Singh (PW-3), brother of the deceased, Randhir Singh (PW-4), father of the deceased and Major Singh (PW-6), Sarpanch of the village. Insofar as PWs 3 and 4 are concerned, they are relatives of the deceased and their evidence will have to be scrutinized with greater care, caution and circumspection. Insofar as harassment with regard to non-fulfillment of demand of dowry is concerned, except the vague allegation, there is nothing in their evidence to support the prosecution case. Insofar as Major Singh (PW-6), Sarpanch of the village is concerned, he stated that he was informed by Randhir Singh (PW-4), father of the deceased that in-laws of the deceased were harassing her and therefore they should go to village Chatha. However, he also does not state that he was informed by Randhir Singh (PW-4), father of the deceased that the deceased was meted out to any harassment on account of non-fulfillment of demand of dowry. We are therefore of the considered view that there is no evidence to prove beyond reasonable doubt that the deceased was harassed on account of non-fulfillment of demand of dowry. We therefore find that the case under Section 304-B of IPC is not made out by the prosecution.

Accused Acquitted. 

Parties

PHULEL SINGH vs. STATE OF HARAYANA – CRIMINAL APPEAL NO. 396 OF 2010 – SEPTEMBER 27, 2023 [3 Judge Bench] – 2023INSC863.

https://main.sci.gov.in/supremecourt/2009/35079/35079_2009_4_1501_47339_Judgement_27-Sep-2023.pdf

PHULEL SINGH VS. STATE OF HARYANA

Further study on the subject

Omission to state oral dying declaration in section 161 Cr.P.C statement – value of.

Dying Declaration – No stereotypical approach can be adopted by courts

Appreciation of evidence of dying declaration – explained

Whether dying declaration can be treated as statement or confession if maker survives?

Article – The nitty gritty views of the dying declaration 

Fir is a public document and also a dying declaration in the present case. Hence, it shall be treated as substantive piece of evidence and admissible u/s 32(1) Evidence Act., 1872

Appreciation of dying declaration and recovery from open place (section 32 & 27 Evidence Act)

Dying declaration cannot be believed if it is in impeachable quality

Wife poured kerosene and the husband taking undue advantage lighted with matchstick. Hence murder.