Digest and a study recall on dying declaration

The appellant is appealing against the High Court of Bombay’s decision to uphold a life imprisonment sentence. Case Background: The case involves a husband who allegedly poured kerosene on the deceased and set her on fire. The police registered an FIR based on the victim’s dying declaration. Subsequently, another dying declaration was recorded by a special executive magistrate two days later. The investigation was concluded, and a charge sheet was filed. During the trial, the defense presented a doctor as a witness. The trial court convicted only the appellant and his juvenile brother for the murder of the deceased based on the dying declaration. Court Proceedings: The appeal against the trial court’s judgment was dismissed by the Hon’ble High Court. However, the Hon’ble Apex court has suspended the sentence. Key Details: Certain facts were not mentioned in the Section 161 CRPC statement. Dying Declaration & Legal Principles: The dying declaration can be considered without corroboration, as per the principles governing dying declaration. Section 32(1) provides an exception to the hearsay rule. It is also stated that when a person is on the verge of death, they are less likely to lie. Furthermore, the matter of multiple dying declarations and their inconsistencies is a crucial aspect, as each dying declaration needs to be separately assessed. Finally, conviction confirmed based on the statement recorded as dying declaration corroborated with the doctor’s evidence.

Appeal – Prosecution case – Dying declaration to ASI – Evidence of doctor about dying declaration to him firstly – Nothing on record to show why the doctor would lie before the court – Prosecution Witness did not state in his chief-examination that the doctor examined the deceased before giving the fitness certificate – Doctor who gave fitness certificate was not examined by the prosecution – Hon’ble Supreme court doubted entire prosecution witnesses.

It is clear to us that the ocular evidence with regard to the events preceding the actual incident rested exclusively on the statements of P Ws.2 and 10. The glaring omissions made by them are writ large in the cross-examination. We are, therefore, of the opinion that the present case is one of no evidence and the possibility that the deceased had been burnt in an accident cannot be ruled out. We, accordingly, allow the appeal, set aside the conviction of the Appellant and order his acquittal.

These factors taken together create a serious doubt about the correctness of the dying declaration. Therefore, the dying declaration will have to be kept out of consideration. In any case, the dying declaration is not of that sterling quality on which the conviction can be based in absence of any other evidence. Therefore, the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt. The appeal succeeds and the impugned orders are quashed and set aside. The appellant is acquitted.

In the decision in LaxmanVs. State of Maharashtra [2002 6 SCC 710], the Constitution Bench of the Apex Court had considered the question of nature of medical certification regarding fitness of victim to make a dying declaration. In the instant case, the statement of the victim under Section 162 Cr.P.C. was recorded on 22.05.2016 by the Investigating Officer. In any event, this statement of the victim had not been used by the prosecution to prove the guilt of the accused.

Head note: – Many persons around -Well then, who recorded the same?, What was his name?, What was his designation if he was a police personnel? remains unstated by her. Significantly, this witness also does not testify to the correctness or otherwise of the contents thereof. It was testified that at the time of recording of such statement “there were many persons around”. Who these persons were, is another aspect that remains unclear. Whether these persons were examined is unknown. The dying declaration was signed by thumb impression by the deceased but, it is not the case of the prosecution that the deceased was illiterate. The Doctor also does not state that the injured was in a condition to sign. Then why the thumb impression, remains a mystery casting a serious doubt about its authenticity or correctness of such declaration.

Head note: The relative boys of the deceased admitted that they had told the deceased whatever they had to tell – Further, they accompany them to record the deceased statement – Also witness 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 – Hence, disbelieved the dying declaration.

But her statement cannot be relied upon in view of the fact that there is no evidence to suggest that just before the death PW13; Bolia Devi had talked to the deceased or that the deceased was in the condition to make statements. Her statement is corroborated by PW14, Bachchu Sao, who was present in the hospital, but not corroborated by PW12; Gulab Saha neighbor who was also said to be present in the hospital.

Both the above statements, if read together, would reveal that on the fateful day, the appellant had assaulted the deceased wife under the influence of alcohol. He even struck a blow on her chest and pushed her. At the time of the said incident, the children were playing in the courtyard. When the assault of the appellant became unbearable, she took the cane of kerosene from kitchen and poured it on her body whereupon her husband lighted a matchstick and burnt her.

Head note: Appeal against conviction – Hon’ble High court confirmed conviction Incident – Dying declarations of deceased – First dying declaration is to his brother – Second dying declaration is to his mother – Eye-witness (PW-13) testimony of the incident – PW-13 is an interested witness with criminal background – SOC cannot be visible from the hotel where the witness have seen the occurrence – Analysing Dying Declaration – There is no evidence in record to prove the deceased was alive and in position to speak to his brother and mother.

Hon’ble Supreme Court answered two crucial questions in this judgment: One: Even after the survivor of the dying declaration denied making such dying declaration still a statement and can be used for corroboration or contradiction. Two: Such statements of dying declarations after the author is alive can be treated as confessional statement or statement recorded u/s 164(2) crpc.

Documentary evidence – FIR is a public document and also a dying declaration hence it shall be treated as substantive piece of evidence and admissible under section 32(1) Evidence Act.,1872.

Head note: Hon’ble Supreme Court – Murder case – Appreciation relating to dying declaration – As per evidence the deceased would have survived only for a short duration after he received the injuries – Acquitted.

Head note: One instance unless portentous, in the absence of any material evidence of interference and involvement in the marital life of the complainant, may not be sufficient to implicate the person as having committed cruelty under section 498A of the IPC.

These factors taken together create a serious doubt about the correctness of the dying declaration. Therefore, the dying declaration will have to be kept out of consideration. In any case, the dying declaration is not of that sterling quality on which the conviction can be based in absence of any other evidence. Therefore, the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt. The appeal succeeds and the impugned orders are quashed and set aside. The appellant is acquitted.

These factors taken together create a serious doubt about the correctness of the dying declaration. Therefore, the dying declaration will have to be kept out of consideration. In any case, the dying declaration is not of that sterling quality on which the conviction can be based in absence of any other evidence. Therefore, the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt. The appeal succeeds and the impugned orders are quashed and set aside. The appellant is acquitted.