The Supreme Court has reiterated that a dying declaration, oral or written before it could be relied upon, if it must pass a test of reliability test.
The Division judge bench comprising of Justice Surya Kant and Justice J.B Padriwala while adjudication upon an appeal accessing reliability of oral dying declaration as legal evidence observed that it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross-examination to test is genuine or veracity.
Brief Facts of the Case
The factual matrix of the case is that the accused took the deceased along with them for the purpose of paddy plantation. After a while, when the deceased doesn’t reach home, the family members of the deceased started searching for him. The dead body of the deceased was found lying in the drain of Duribam Tea Estate with various injuries on the body, including burn injuries. Hanu Khetrapal, one of the prosecution witnesses, approached the deceased and asked him what had transpired while he was in the adjoining agricultural field.
The deceased is alleged to have told the Hanu Khetrapal at that time that the accused had thrown hot lali (the raw material used to prepare local liquor) on his body, causing burn injuries. After saying as much, the deceased left, and his body was later found inside the Duribam Tea Estate's sewer. The trial court then proceeded to file charges against each of the three defendants for the offense described in Section 302 read in conjunction with Section 34 of the IPC.
The appellant after being dissatisfied with the judgment of the trial court preferred the criminal appeal before the Gauhati High Court but the order was dismissed by the court. The learned counsel for the appellant contended that the entire conviction of the appellant is solely based on an oral dying declaration. The trial court and the High Court should not have placed reliance on this alleged oral dying declaration of the deceased since it lacks credibility.
He further contended that the dying declaration might have gained some validity had it been put in writing and signed by an Executive Magistrate. However, relying in any way on an unverified oral dying pronouncement made in front of a local individual would be too risky.
The court relied on the Judgement titled, ‘Heikrujam Chaoba Singh v. State of Manipur’ in which it was held that-
“An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement.The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. …”
The court held that the information in the file, and more specifically the nature of the oral testimony, suggests that something happened when the deceased and the accused people were inside the liquor business. It seems to be an instance of an unexpected battle. It might be related to a verbal fight that took place between the deceased and the accused while they were in the distillery. At last, the appeal was dismissed by the court.
CASE TITLE- Kamal Khudal V. State of Assam
CORAM- Justice Surya Kant and Justice J.B Padriwala
CITATION- CRIMINAL APPEAL NO. 470 OF 2015
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