dying declaration

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.M. Gavhane and T.V. Nalawade, JJ., while partially allowing the appeal, held that,

“…with regard to offence under Section 498-A IPC, prosecuton has to prove that the accused in furtherance of their common intention caused cruelty within the meaning of cruelty given under explanation A and B of Section 498-A IPC.”

The present appeal was filed to challenge the judgment and order of Sessions Judge that had passed conviction and sentence for offence punishable under Section 498-A read with Section 34 of Penal Code, 1860, along with punishment under Section 302 read with 34 IPC.

Facts of the case were that the deceased was married to accused 1 about five months before the incident. While the deceased and accused 1 were cohabiting, the deceased sustained 86% burn injuries on 17-11-2007.

Later, dying declarations were recorded in which it was stated that since the marriage accused were harassing the deceased and asking her to bring Rs 10,000 from her parents. On account of the same, the deceased was assaulted and harassed.

On 16-11-2007, accused had beaten her by fist and kick blows and stick and on the morning of 17-11-2007, her father-in-law and mother-in-law caught hold her and her husband poured kerosene on her person and set her on fire by lighting the match stick and thus attempted to commit her murder.

Advocate for the appellants/accused 1 submitted that when both the dying declarations were recorded the deceased was not in a position to make a statement due to 86% burns suffered by her. Further, he stated that both the written dying declaration are not voluntary and trustworthy.

APP submitted that there was no material to show that dying declarations were the result of the product of imagination, tutoring or prompting.

Analysis & Decision of the Court

High Court stated that the death of the accused was not natural.

Looking to the defence of the accused and case of the prosecution it is to be seen whether the death of the deceased is homicidal, suicidal or accidental and if the death of deceased is homicidal whether the accused are responsible for causing burns to the deceased and to her death.

Nothing was found in favour of the accused in the cross-examination of medical officer. Court also noted that the contents of the dying declarations were not specifically put to the accused in the statement under Section 313 CrPC and as such no opportunity was given to the accused to explain the circumstances appearing against them in both the dying declarations.

Further Court found that kerosene residues were present on the burnt clothes of the deceased. If the deceased would have caught fire accidentally no kerosene would have been found on the clothes on her person. Evidence of the defence witness is not believable and sufficient to state that the deceased sustained burns accidentally.

Thus, accused 1 was responsible for causing burn injuries to the deceased and ultimately to cause her death.

Findings of the trial court that the prosecution has proved offence under Section 302 IPC against accused 2 & 3 father-in-law and mother-in-law of deceased is not correct and sustainable.

Hence in the above view, the appeal was partly allowed. [Dadarao v. State of Maharashtra, 2020 SCC OnLine Bom 346, decided on 03-03-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ., upheld the decision of the trial court to convict the accused under Section 302 of Penal Code and held that,

“ A person who pours kerosene on someone and sets him on fire has no right to say that he had no knowledge that this act of his would cause death or would cause such bodily injury as is likely to cause death.”

The present appeal was preferred against the conviction under Sections 302, 323 and 506 of Penal Code, 1860.

Facts

Appellant/accused was a liquor addict and one evening when he came to home, the deceased (wife) asked him why he consumed liquor after which the appellant/accused abused her and said that he would get rid of her.

On the night of the above-stated incident, when the deceased and her son went off to sleep, accused/appellant poured kerosene on the deceased and ignited the match stick and threw it at her and ran out of the house. Thereupon, accused/appellant poured water on her and extinguished the fire.

Two dying declarations were recorded wherein the deceased stated the same story as above, after which offences under Sections 307, 323, 504 and 506 of IPC were registered. Offence was converted under Section 302 of Penal Code as the deceased breathed her last.

Analysis

Sessions Judge found that both the dying declarations were voluntary and truthful.

“Principle on which dying declaration is admitted in evidence is based on the legal maxim “Nemo Moriturus Praesumitur Mentire”: i.e. the man will not meet his maker with a lie in his mouth. It is based on the principle that in the face of death, all the worldly aspirations of a man do not exist. It is unlikely that a person who is on death bed would falsely implicate an innocent.”

Principles of governing the dying declaration are enumerated in the case of Paniben v. State of Gujarat, (1992) 2 SCC 474.

Law on the dying declaration is that if the Court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. When the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction.

Dying declaration is enshrined in Section 32 of the Evidence Act as an exception to the general rule contained in Section 60 of the Evidence Act.

Court noted that the dying declaration was recorded and signed by the victim when the doctor declared her to be in a fit state to do so. Thus, both the dying declarations appear to be truthful and voluntary.

Bench observed that, accused had failed to explain the circumstances in which the incident occurred. Prosecution proved both the dying declarations. It also proved the presence of the accused at the time of incident and also proved that kerosene was detected on the clothes of the accused.

Having regard to the above, trial court did not commit any error in placing reliance on both the dying declarations and recording the conviction against the accused under Section 302 of IPC.

Counsel Shri Chatterji for the accused had contended that the accused had no intention of doing the said act i.e. the intention to murder as he had poured water on the person of the deceased soon after she was engulfed by fire.

For the above argument, Court stated that,

The act is so inherently dangerous that a man of ordinary intelligence can also contemplate that setting a person on fire would entail death or would cause such bodily injury as is likely to cause death.

Thus, the High Court on noting the above held that the prosecution has proved that the death is homicidal. Bench also cited the Supreme Court’ decision in Suraj Jagannath Jadhav v. State of Maharashtra, 2019 SCC OnLine SC 1608, wherein it was held that,

“Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death.”

Hence, in view of the above, appeal is dismissed. [Navin Bhimrao Bansode v. State of Maharashtra, 2020 SCC OnLine Bom 284, decided on 17-02-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ranjit More and Surendra P. Tavadae, JJ., while disposing of the present appeal altered the conviction under Section 302 to Section 304 Part-II of Penal Code, 1860.

The Judgment and order of the Sessions Judge who had convicted the appellant under Section 302 IPC was challenged.

The facts pertinent to the case are that, the appellant was addicted to liquor and in the influence of the same he used to abuse and assault the deceased (Sarika). On the night of the incident, appellant picked up a quarrel on a petty ground and poured thinner on the person of Sarika and set her on fire. Later, appellant himself tried to extinguish the fire by putting water on the person of Sarika and took her to the hospital.

On the basis of the statement of Sarika, crime initially came to be registered under Section 307 of IPC. During the treatment, Sarika succumbed to injuries. After the post-mortem was performed, the offence under Section 302 IPC was added by the Investigating Officer. Later the appellant as arrested.

Advocate for the appellant submitted that the prosecution heavily relied on two written dying declarations and one oral dying declaration of the deceased. He further states that there are major flaws in recording the two dying declarations and they are concocted. Defence of the appellant is more probable than the prosecution theory.

Adding to his submissions, he stated that the appellant had no intention to kill his wife. Therefore the case falls under Section 304 Part-II of IPC.

APP for the State submitted that the dying declarations are consistent and there no flaws in recording the same. Thus, the same can form the basis for conviction under Section 302 IPC. Adding to his submission, APP stated that prior to the incident the appellant had threatened to kill his wife by setting her on fire and with this, it cannot be said that he had no intention of killing his wife.

The entire theory of prosecution depends on dying declarations alleged to have been given by the deceased immediately after the incident. Sarika (deceased) had disclosed her brother that the appellant poured thinner and set her on fire by a match stick. She also stated that the appellant had threatened that if she disclosed the name she would be killed.

Further, it is to be noted that the sum and substance of the first written dying declaration shows that deceased disclosed the cause of the incident as a quarrel over a petty count. The second dying declaration was recorded by the Special Executive Magistrate.

While going through both the declarations, they both appear to be consistent and there seems to be no scope for concoction. The first oral dying declaration was made by Sarika to her brother and thereafter, Police and Special Executive Magistrate recorded Sarika’s statement with the opinion of Medical Officer. Nothing was brought on record to establish that the dying declarations were concocted.

APP relied on the Supreme Court’s decision in Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324; wherein it was held that the conduct cannot be seen divorced from totality of circumstances.

Decision

In the present case, it is established on record that due to quarrel between the appellant over a petty issue he poured thinner on the person of deceased and set her on fire. Taking into consideration the same it cannot be said that the appellant out of control did act of setting his wife on fire but subsequently he extinguished the fire by showing his remorse towards the act of setting fire. Therefore, the appellant had no intention to kill his wife and the said act cannot fall into the purview of Section 302 IPC but it squarely falls under the provisions of Section 304 Part-II IPC.

Thus, relying on the ratio of the decision in Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324, Court was inclined to alter the conviction punishable under Section 302 to 304 Part-II IPC. [Avinash Baburao Rayate v. State of Maharashtra, Criminal Appeal No. 873 of 2010, decided on 31-01-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of P.N. Deshmukh and Pushpa V. Ganediwala, JJ., allowed a criminal appeal filed against the order of the trial court whereby the appellant was convicted for committing the offence of murder punishable under Section 302 IPC and for the offence of cruelty to women punishable under Section 498-A IPC. 

The appellant was convicted for the murder of his wife. It was alleged by the prosecution that the appellant used to ill-treat and harass the deceased after consuming liquor. The deceased died as a result of a hundred percent burn injuries. The conviction of the appellant was based on the dying declaration of the deceased recorded in the hospital. Aggrieved by his conviction, the appellant filed the instant appeal. 

The High Court considered the submissions made by R.M. Daga, Advocate appearing for the appellant, and S.P. Deshpande, Additional Public Prosecutor representing the State. 

Perusing the order of the trial court, the high court noted that the order convicting the appellant was based only on the dying declaration of the deceased. Considering the post mortem report, the Court found that the deceased died of hundred percent burn injuries.  In such circumstances, the Court was of the opinion that a bare perusal of the dying declaration would reveal the deceased’s thumb impression thereon with clear ridges, which creates a doubt in the case of the prosecution. 

Moreover, no medical officer was examined by the prosecution to bring on record the fact of the physical and mental state of the deceased before and after recording the statement, nor there is anything on record to establish that in spite of any attempts made by the prosecution, no presence of concerned medical officer could be obtained. Reliance was placed on the decision of the Supreme Court in State of H.P. v. Jai Lal, (1999) 7 SCC 280. wherein it was held that the report of an expert witness cannot be accepted as it is unless the expert witness has been examined and in the absence of examination of the medical expert, the certificate given by him cannot be read into evidence. It was also held that medical witness is an expert witness and his evidence stands on a different pedestal than an ordinary witness.    

In such view of the matter, the High Court allowed the appeal and set aside the order of the trial court conviction the appellant. [Pravin v. State of Maharashtra, 2020 SCC OnLine Bom 95,  decided on 07-01-2020]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sabina and Goverdhan Bardhar, JJ., while dismissing the appeal upheld the judgment passed by the trial court.

In the instant case, respondent Nafisa in her dying declaration stated that her husband Amin who is the appellant, in this case, used to beat her out of matrimonial home under the influence of liquor. On 14-08-2011 Amin under the influence of liquor gave beatings to her and poured kerosene oil on her and set her on fire around 8-9 pm. The children were sleeping at that time so she raised an alarm she was taken to the hospital by her neighbours. Meanwhile, the appellant fled away from the spot. Respondent’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Respondent died on 15-08-2011 at 3:30 am so the offence under Section 302 of the Penal Code, 1860 was added. 

During the investigation, appellant said he was falsely framed in this case and said his wife had prepared meals and had served to children and he had no knowledge of how the fire was caught. Moreover, he said he tried to extinguish the fire and suffered injuries on his hands and face. When children were examined they didn’t support prosecution case and said their father tried to extinguish fire. Medical examination of the appellant said he suffered burn injuries on his hands and forearm. Even the parents of the deceased also admitted that she never complained about her husband to them. 

Therefore, the question before Court was that the statement recorded as dying declaration under Section 164 of the Code of Criminal Procedure, 1973 recorded by the magistrate the entire case should rest upon it.

The Court relied on the case Muthu Kutty v. State of T.N., (2005) 9 SCC 113 where Supreme Court laid down that though the dying declaration is of great value and importance, the accused is left with no power of cross-examination. The Court has to be on guard “that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination”. In another case of Munnu Raja v. State of M.P., (1976) 3 SCC 104, the Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

The Court opined that the dying declaration in this case was obtained by all legal means as it was recorded by magistrate under Section 164 of the Code of Criminal Procedure, 1973 and the doctor deemed her fit to give statement and it was also signed by doctor and moreover no reason was established of her to such a thing in her death bed. The appellant neither took her wife to the hospital and nor was present in the hospital during the time of treatment. Moreover, the medical examination of the appellant happened on 28-09-2011 and the incident took place on 14-08-2011. Delay of so many days further questions the credibility of the medical report. This establishes guilt in the mind of appellant. [Amin v. State of Rajasthan, 2019 SCC OnLine Raj 3945, decided on 23-10-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. disposed of a criminal appeal where he altered the conviction of the appellant from the one under Section 302 (punishment for murder) to that under Section 304 Part I (punishment for culpable homicide not amounting to murder) of the Penal Code.

The appellant was convicted for the murder of her sister-in-law. The appellant had developed a fancy for the deceased. The marriage of the deceased was fixed on the day previous to the incident. On the morning of the day of the incident, the appellant inflicted axe blow on the deceased in the field. She went to her house and after some time she was taken to the police station where she registered FIR. After that, she was taken to the hospital but she died on the way. The appellant was tried and convicted by the trial court for the offence of murder punishable under Section 302. Aggrieved thereby, the appellant filed the present appeal.

The High Court noted that the deceased having died immediately after lodging FIR, it was required to dwell on the legal character of the said FIR, as to whether the same was admissible in evidence as dying declaration. Relying on Dharam Pal v. State of U.P., (2008) 17 SCC 337, the Court observed: “The legal position is therefore well settled that the FIR lodged by the deceased would attain the character and legal status of dying declaration if the victim dies before his/her examination in the Court.” Considering the same, the Court upheld the finding that the appellant committed the act that resulted in the death of the deceased.

However, the Court considered medical opinion of the doctor who conducted the post-mortem on the deceased, who stated that the deceased would have been saved if she would have been administered treatment immediately after the incident. The relatives of the deceased committed mistake by taking her first to the police station, rather taking her to the hospital. Considering such mitigating circumstances, the High Court altered the conviction of the appellant mentioned above. Also, the sentence of life imprisonment awarded to him by the trial court was reduced to 10 years, as already undergone by the appellant.[Ram Kumar v. State of Chhattisgarh, 2019 SCC OnLine Chh 83, decided on 22-07-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pritinker Diwaker and Ali Zamin, JJ. dismissed an appeal filed by the accused and held that the trial Judge was justified in convicting the appellants under Sections 302 and 34 of the Penal Code, 1860.

In the present case, the deceased Radhey Shyam Maheshwari was a practicing lawyer and also an active politician. Accused Chob Singh was earlier a block President of Congress party and he was expelled due to his anti-party activities. Since then he had inimical relations with the deceased. When deceased was going to the house of Advocate Rajendra Pal Gupta, the accused Chob Singh apprehended him and accused Dharma Pal and other three other accused attacked him. Dying declaration was also recorded regarding the same. Trial Judge framed charges against the accused-appellants and the deceased accused under Sections 302 and 34 IPC; whereas against accused-appellant, an additional charge was framed under Section 25 of the Arms Act, 1959. During the pendency of the trial, accused Chob Singh expired and the trial court proceeded with the case of remaining three accused persons. The trial Judge convicted the accused on the basis of the dying declaration and statements of two prosecution witnesses. The trial judge convicted the accused-appellant and acquitted Shyam Lal under Section 25 of Arms Act. The present appeal was filed challenging the said order.

Learned counsel for the appellant, Arvind Kumar Srivastava, contended that prosecution witnesses 1 and 2 were not trustworthy, and that language of dying declaration prima facie showed that it was a concocted piece of evidence. He submitted that no one in his dying declaration would say that he is making a statement on oath.

Learned counsel for the State, Amit Sinha, supported the impugned judgment and argued that the statement of the two eye-witnesses were supported by the injury/medical report of the deceased and that the dying declaration of the deceased was fully reliable and trustworthy as the same was duly certified by the Doctor and the recorder of dying declaration i.e. the Executive Magistrate had administered oath to him before the accused died.

The Court placed reliance on Ramakant Mishra v. State of UP, (2015) 8 SCC 299 where it was held that mere fact that in the dying declaration an oath had been administered to the deceased before recording the same, would not doubt the credibility of the dying declaration and would not nullify the same.

Taking cumulative effect of all the facts and evidence it was held that the trial judge was justified in convicting the appellants as the Court found no substance in the argument of the defense that due to his physical condition the deceased was not in a position to make any such dying declaration. Hence, the appeal was dismissed.[Vidya Ram v. State of U.P., 2019 SCC OnLine All 2265, decided on 07-05-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and Arindam Lodh, JJ. dismissed an appeal filed against the decision of the Sessions Judge whereby the appellant was convicted and sentenced under Section 302 IPC for committing the murder of his wife.

The appellant was alleged to have poured kerosene on his wife and put her ablaze. He was accordingly convicted by Sessions Judge. Senior Advocate P.K. Biswas assisted P. Majumdar, Advocate representing the appellant challenged the dying declaration made by the deceased wife. It was argued that the dying declaration was not taken in accordance with the established principles of law and thus could not form the basis of recording conviction against the appellant. Per contra, A. Roy Barma, Additional Public Prosecutor appearing for the State submitted that the objections relate to some technical defects which should be ignored.

The High Court, on careful scrutiny of evidence, found that the signature or thumb impression of the victim could not be taken on the dying declaration as her hands were totally burnt. The Court put reliance on Inder Singh v. State (UT of Delhi), (1978) 4 SCC 161 and Pattu Rajan v. State of T.N. (2019) 4 SCC 771. It was stated: “There is no thumb rule that dying declaration must be certified by doctors. It can be said to be only a rule of prudence. In our considered view, if the person who records the dying declaration is convinced with the fitness of the victim at the time of recording the declaration in question, then, there is no reason to doubt the reliability or credibility of the dying declaration.”

The Court further observed: “Another important aspect to be borne in mind is that in our country, the Executive Magistrates or the Doctors are not adequately trained in such affairs. Keeping in mind the principle enunciated in Pattu Rajan case we are also of the considered view that the traditional dogmatic hyper-technical approach should be replaced by the realistic and traditional approach  for administering justice in a criminal trial.” In such conspectus, it was held that there was no reason to interfere with the impugned judgment and the appeal was, therefore, dismissed.[Khokan Sarkar v. State of Tripura, 2019 SCC OnLine Tri 197, decided on 25-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed a criminal appeal and set aside the decision of the trial court whereby the appellant was convicted under Section 302 IPC for murdering his wife.

The appellant was convicted on the basis of dying declaration recorded by his deceased wife. It was alleged that on the fateful day, the appellant and his wife had a quarrel after which he poured kerosene on her and set her ablaze. The wife untimely succumbed to burn injuries in hospital. Aggrieved by his conviction recorded by the trial court, the appellant filed the present appeal.

Neha Bhide, Advocate, representing the appellant contended that there were lacunae in the dying declaration, it was unreliable and a fake document. Per contra, V.V. Gangurde, APP, appearing for the State submitted that there was nothing to doubt the genuineness of the dying declaration.

The High Court noted that the infirmities in the dying declaration spoke volumes about its genuineness. It did not bear the endorsement of the Doctor as to whether the wife was in a fit state to make a statement. There were interpolations at more than one places in the declaration. There was no description as to whether the thumb impression was of the right hand or left hand. The Court observed: “A dying declaration can be the basis of conviction, if the Court comes to the conclusion that it represents truthful version. To pass the test of reliability a close scrutiny is necessary as the accused has no opportunity to cross examine the maker of dying declaration. It must inspire full confidence of the Court regarding its correctness and voluntariness and court must ensure that the statement was not the result of tutoring, prompting or product of imagination.” 

Holding that the dying declaration in the present case failed to pass the test of reliability, the Court was of the opinion that appellant deserved to be given benefit of doubt. Consequently,the appeal was allowed and the appellant was acquitted of charges as framed. [Ashwini Rammeher Sharma v. State of Maharashtra, 2019 SCC OnLine Bom 803, decided on 08-04-2019]

Case BriefsHigh Courts

Bombay High Court: In absence of convincing evidence for sustaining the conviction of the appellants (in-laws), Sadhana S. Jadhav, J. reversed the trial court’s judgment whereby they were convicted for the offences punishable under Sections 306 (abetment of suicide) and 498-A (cruelty to woman) IPC.

Ujawala (deceased) was married to Pravin, son of the appellants. She had disclosed to her parents that she was happy with Pravin, but was ill-treated and harassed by her in-laws. On 06-04-1995, she immolated herself. Pravin extinguished the fire and took her to the hospital, but she succumbed to burn injuries. Appellant’s conviction rested on the dying declaration made by Ujwala where she categorically stated that the appellants quarreled with her and abused her for no reason, and therefore being fed up, she immolated herself.

Shekhar A. Ingawale, Advocate represented the appellants. Per contra, Pallavi Dabholkar, Assistant Public Prosecutor appeared for the State.

The High Court noted some pertinent facts: (i) There was a doubt as to endorsement  of the Doctor that Ujawala was in a fit condition to give the statement; (ii) as per the record, Ujwala sustained 100% burn injuries on both hands, in spite of that a clear thumb impression was obtained on her statement; (iii) the statement was snot read-over to Ujwala; (iv) Ujwala’s father was present at the time of recording of her statement  and even countersigned it. Such and other facts, in the Court’s opinion, spelled a doubt on the veracity of Ujwala’s dying declaration.

The Court additionally noted that options were open to Ujwala. She was working in a factory, was economically independent and her husband was supportive. In such a view, it was held that no conviction could be recorded solely on the basis of the dying declaration. The appeal was thus allowed. [Nana Dhondiram Lad v. State of Maharashtra, 2019 SCC OnLine Bom 605, decided on 15-03-2019]

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

The Court was hearing a matter wherein the deceased had died after the accused stabbed him during a quarrel relating to land dispute. He gave a statement to the Doctor when he was taken to primary care and that statement, in which the victim narrated the occurrence including the names of the assailants, was treated as a dying declaration. The Trial Court had, upon appreciation of the material on record, acquitted all the accused and held that the dying declaration of the victim was unreliable.

Noticing that the Trial Court had given more weightage to the minor variations found in the evidence   of the prosecution witnesses as compared to the information found in the dying declaration, the Court said:

“The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult   for   such   a   victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot­like manner.”

The Court also said that the Trial   Court   was wrong in assuming that   the   Investigation   Officer   in collusion   with   the   doctor   wilfully   fabricated   the   dying declaration. It said:

“It is needless to state that the Investigation Officer and the doctor are independent public servants and are not related either to the accused or the deceased.  It is not open for the Trial Court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.”

[Laltu Ghosh v. State of West Bengal, 2019 SCC OnLine SC 236, decided on 19.02.2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of the Delhi High Court comprising of Sunil Gaur and Pratibha M. Singh JJ., dismissed an appeal against conviction before it. The appellant had been convicted under Section 302 IPC for the pre-meditated murder of the deceased and pleaded for scaling down of the offence convicted for to culpable homicide not amounting to murder under Section 304 IPC.

The trial Court had convicted the accused relied on the dying declaration of the deceased (Ext. PW 3/A), the evidence of his wife (PW 3) and the evidence of the accused’ brother (PW 7). The appellant challenged the conviction on the grounds that the evidence of the initial investigating officer (PW 19) and the accompanying constable (PW 14) were inconsistent regarding the time of preparation of rukka (statement given) and that the same creates serious doubts as to authenticity of the prosecution’s case. Further, the appellant submitted that PW 7’s statements in the cross examination were vastly different than his statements in the examination-in-chief and hence, the ocular evidence is inconsistent and unreliable.

The Court took note of the submissions and held that the dying declaration of the deceased was fully corroborated by evidence of PW 3 who was an eyewitness to the incident. Her testimony remained unshaken in the cross-examination. Regarding PW 7 turning hostile, the Court observed that his cross-examination had taken place almost 13 months after recording of evidence and opined that such a long gap may have urged him to turn hostile.

Relying on the Supreme Court judgment in Ramesh v. State of Haryana, (2017) 1 SCC 529, the Court reiterated that it is common for witnesses to turn hostile in criminal cases and that it should not be a reason to let the accused go scot free if there are other evidences to support the charges against the accused. Explaining the importance attributed to a dying declaration, the court relied on Lakhan v. State of M.P., (2010) 8 SCC 514 to reiterate that a conviction can be upheld solely on the basis of a dying declaration meaning that a dying declaration is to be disbelieved only if there are suspicious circumstances surrounding the same. The rukka was thus held to be reliable evidence unshaken by the contradictory versions of PW 7. Appeal dismissed. [Vishal v. State, 2018 SCC OnLine Del 8709, decided on 21-4-2018]

Case BriefsSupreme Court

Supreme Court: Asking the Courts to be careful while dealing with dying declarations, the Court held that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.

Regarding the approach to be followed in case of more than one dying declaration, the bench of Kurian Joseph and R.K. Agrawal, JJ held that the intrinsic contradictions in such dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. However, it was held that the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. It was further held that The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned. [State of Gujarat v. Jayrajbhai Punjabhai Varu, 2016 SCC OnLine SC 688, decided on 11.07.2016]