Only Reliable, Trustworthy And Confidence Inspiring Dying Declaration May Form The Sole Basis For Conviction

Introduction

The principle that dying declarations are admissible as evidence emerges from the legal maxim “Nemo morituru spraesumitur mentire” which means that a man will not meet his maker with a lie in his mouth.

As per Section 32 of the Indian Evidence Act, 1872, the written or verbal statements of relevant facts made by someone as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, are relevant statements whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Factual Background

The present matter revolves around the death of the deceased after suffering 91% burns on her body which as per her dying declaration were caused by the Appellant. It was the prosecution case that the Appellant used to harass the deceased on account of insufficiency of dowry.

On 5th November 1991, the family members of the deceased were informed about the burns suffered by the deceased and her admission in Daya Nand Medical College and Hospital, Ludhiana. The same day, the Medical Officer who had medico-legally examined the deceased sent ruqa to the Station House Officer, Police Station Sarabha Nagar, Ludhiana. Thereafter, on 7th November 2011, when the deceased regained consciousness, she told her family members that it was the Appellant who had burnt her. Following this, the father of the deceased made an application to the Sub-Divisional Magistrate, Ludhiana, for recording the statement of the deceased. The next day, on 8th November 2011, the Executive Magistrate, Ludhiana received the said application along with endorsements of the Sub-Divisional Magistrate, Ludhiana and consequently moved another application before the Medical Officer seeking his opinion regarding the fitness of the deceased. When the Medical Officer gave his opinion that the deceased was fit to make a statement, the statement of the deceased was recorded, read over and explained to her, who put her thumb impression on the same after admitting to its contents to be correct.

[Image Sources : Shutterstock]

Legal Case

Thereafter, a First Information Report was recorded based on the said statement of the deceased against the father-in-law of the deceased, the mother-in-law of the deceased and the Appellant for the offences punishable under Sections 498-A, 307, 406 and 34 of IPC. However, charges were framed by the Sessions Court for the offences punishable under Section 302 read with Section 34 of IPC and Section 304-B of IPC.

The Ld. trial court acquitted the accused persons of the charge under Section 302 of the IPC but convicted all three accused persons for the offence punishable under Section 304-B of IPC for causing the dowry death of the deceased and accordingly sentenced them to undergo rigorous imprisonment for a period of seven years along with fine.

Being aggrieved by the same, the accused persons preferred an appeal before the High Court concerning the conviction and sentence awarded by the learned trial court. Meanwhile, the State of Haryana and the brother of the deceased also preferred appeals before the High Court regarding the acquittal of the accused persons Section 302 of IPC.

The High Court, while noting that the appeal preferred by the mother-in-law of the deceased stood abated as she had died during the proceedings, partly allowed the appeals preferred by the accused persons thereby acquitting the deceased’s father in law of the charge levelled against him under Section 304-B of IPC, but confirmed the conviction and sentence awarded to the Appellant by the Ld. trial court.

Analysis

It is a settled position of law that a dying declaration is admissible as evidence and can also form the sole basis of conviction. In State of U. P. v. Ram Sagar Yadav (1985)the Apex Court observed that the primary effort of the court is to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing then the court may, for its assurance, look for corroboration to the dying declaration.

In State of Uttar Pradesh v. Veerapal and another (2022), the Hon’ble Supreme Court asserted the settled legal principle that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated.Each case must be determined on its own facts keeping in view the circumstances in which dying declaration was made.In order to test the reliability of dying declaration court has to keep in mind the circumstances like the opportunity for observation of the dying man i.e., sufficient light when crime was committed, capacity to remember the facts, statements are consistent and the statement has been made at the earlier opportunity and was not the result of tutoring by interested parties.

Decision of the Apex Court

The Hon’ble Supreme Court affirmed the settled legal principles that a conviction can be solely recorded on the basis of dying declaration but also opined that while doing so, the court must come to a conclusion that the dying declaration is trustworthy, reliable and one which inspires confidence.

The Apex Court, in the present case, questioned the veracity of the dying declaration. The Apex Court noted that the Executive Magistrate, in his evidence, admitted that the family members of the deceased, who had brought the application containing the order of the Sub-Divisional Magistrate had told him that whatever they had to tell the deceased, they had told her. He further admitted that those family members and some other persons were in the room in which he recorded the statement of the deceased. Further, the Apex Court highlighted the Medical Officer’s statement per which the Executive Magistrate had recorded the dying declaration of the deceased on 8th November 1991 at 04.40 p.m. whereas the opinion concerning her fitness was given by the Medical Officer at 06.00 p.m. on 8th November 1991.

In these circumstances, the Apex Court was not convinced that the dying declaration was free from doubt.

Moreover, it was pointed out by the Apex Court that when the High Court had disbelieved the dying declaration in so far as another accused (father in law of the deceased) was concerned it was astonishing how the same dying declaration could be made the basis for conviction of another accused (the Appellant).

Insofar as harassment with regard to non-fulfilment of demand of dowry is concerned, except the vague allegation, there is nothing in their evidence to support the prosecution case.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-fulfilling of demand of dowry. We therefore find that the case under Section 304-B of IPC is not made out by the prosecution.

Conclusion

The Hon’ble Supreme Court allowed the appeal, quashed and set aside the judgment and order of conviction as recorded by the trial court dated 14th September 1999 and affirmed by the High Court vide its impugned judgment and order dated 24th July 2009 and acquitted the Appellant of all the charges levelled against him.

Author: Sonakshi Pandey -a student at Symbiosis Law School, NOIDA, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

  1. Phulel Singh v. State of Harayana, 2023 SCC OnLine SC 1227
  2. https://www.scconline.com/blog/post/2023/10/04/dying-declaration-sole-basis-of-conviction-courts-must-conclude-it-trustworthy-supreme-court/
  3. https://kjablr.kar.nic.in/assets/articles/Dying_Declaration_Its_applicability_in_Criminal_Cases.pdf
  4. https://districts.ecourts.gov.in/sites/default/files/gundla%20Radhika%20Article%20by%20II%20ADM%20-%20Cogency%20OF%20Dying%20Declaration.pdf
  5. https://www.linkedin.com/pulse/dying-declaration-its-weightage-anupam-kirti/
  6. The Indian Evidence Act, 1872
  7. State of Uttar Pradesh v. Veerapal and another; (2022) 4 SCC 741
  8. State of U. P. v. Ram Sagar Yadav (1985 AIR 416)

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