Dying Declaration: Omission to state dying declaration in s.161 crpc statement will affect the case
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 [Subhash vs. State of Haryana – Criminal Appeal No.184 of 2006 – 16-12-2010]
Multiple Dying Declarations – No stereotypical approach can be adopted by courts
Both the courts below have noticed that in Ex. P-11, the first dying declaration, the appellant has not been named; rather he along with his father took the deceased in a critically injured state to the hospital. Undoubtedly, the focus of the first dying declaration is only upon the incident involving pouring of kerosene and setting the deceased on fire. The second dying declaration, Ex. P-26 alone elaborates acts of cruelty. That is the only piece of incriminating evidence against the accused [RAJARAM vs. STATE OF MADHYA PRADESH & ORS – CRIMINAL APPEAL NO(S). 2311 OF 2022 [@ SPECIAL LEAVE PETITION (CRL.) NO(S). 6762 of 2022] – December 16, 2022]
Dying Declaration: Appreciation of evidence of dying declaration is explained
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 [Gandhi @ Gandhivel vs. State Rep. by The Inspector of Police, Saibaba Colony Police Station, Coimbatore District – Crl.A.No.714 of 2018 – 19.01.2022]
Dying declaration: section 32 – Whether dying declaration can be treated as statement or confession if maker survives? Yes
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 [VIJAYA v. STATE REP BY THE INSPECTOR OF POLICE – Criminal Appeal No. 1573 of 2022 – SEPTEMBER 15, 2022 – [2022] 7 S.C.R. 367].
Documentary evidence – FIR is a public document and also a dying declaration
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 [HARENDRA RAI vs THE STATE OF BIHAR & ORS – CRIMINAL APPEAL NO.1726 OF 2015 – August 18, 2023 – 3 judges]
Dying Declaration: Disbelieving the dying declaration recorded (appreciation)
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 [PHULEL SINGH vs. STATE OF HARAYANA – CRIMINAL APPEAL NO. 396 OF 2010 – SEPTEMBER 27, 2023 [3 Judge Bench] – 2023INSC863]
Dying declaration: Section 32 & 27 Evidence Act Appreciation of dying declaration (many persons around) & recovery from open place
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 [MANJUNATH & ORS vs. STATE OF KARNATAKA – CRIMINAL APPEAL NO. 866 OF 2011 – 6th November, 2023]
Dying declaration: Section 32 – Dying declaration cannot be believed if it is in impeachable quality
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 [SHAMBHUBHAI KALABHAI RAVAL vs. STATE OF GUJARAT – CRIMINAL APPEAL NO (S). 06 OF 2011]
Dying declaration: Witness who recorded the dying declaration must state in his chief-examination that the doctor examined the deceased before giving fitness certificate
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 [SURJIT SINGH APPELLANT(S) VERSUS STATE OF PUNJAB RESPONDENT(S) – CRIMINAL APPEAL NO. 565/2012 – DECEMBER 07, 2023 – 2023 INSC 1069]
Disbelieving dying declaration: Both dying declarations were said to have given to the interested witnesses and not properly proved
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 [JITENDRA KUMAR MISHRA @ JITTU …APPELLANT VERSUS THE STATE OF MADHYA PRADESH …RESPONDENT CRIMINAL APPEAL NO.1348 OF 2011 with CRIMINAL APPEAL NO. 1347 OF 2011 = JANUARY 5, 2024 – 2024 INSC 20]
Dying declaration: Section 304-B IPC – In dowry death cases prosecution has to prove the initial burden
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 [PANCHANAND MANDAL @ PACHAN MANDAL & ANR vs STATE OF JHARKHAND … CRIMINAL APPEAL NO.2173 OF 2009 – OCTOBER 4,2013]
Dying declaration: Section 304-B IPC – Wife poured kerosene and the husband taking undue advantage lighted with matchstick and hence murder
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 [ANIL KUMAR vs. THE STATE OF KERALA – CRIMINAL APPEAL NO.2697 OF 2023 – 2023 INSC 965 – NOVEMBER 01, 2023]
