The High Court of Jharkhand set aside a conviction under Section 302 IPC and held that the dying declaration, in order to be taken as the basis for conviction, should be of such a nature so as to inspire full confidence of the Court in its truthfulness and correctness and the dying declaration has not been supported by medical opinion in the present case and thus the conviction is not sustainable.
Brief Facts:
The present appeal was filed against the order of the trial court which convicted the appellant for the offence under Section 302 of the Indian Penal Code, 1860 and sentenced him to undergo imprisonment for life on the basis of the dying declaration of the deceased.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the material evidence namely in this case runs contrary to the evidence of the medical expert who has conducted the post-mortem examination and, therefore, based on such uncorroborated oral dying declaration, in the absence of any expert’s opinion regarding the mental capacity of the injured who later on died of the same injury, the learned Sessions Judge committed a serious error on record by convicting the appellant and, therefore, he should be acquitted. The counsel further relied on the judgement in Irfan alias Naka Vs. State of Uttar Pradesh wherein it was held that oral dying declaration should be carefully examined before relying on it to record a conviction, especially in a grievous case like murder.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that no Doctor has been examined to certify that the deceased before his death was in a fit mental state to give a dying declaration and thus the the same is not supported by any Expert’s opinion that the deceased was in a fit mental state at that time to give a coherent, truthful, voluntary and untutored declaration regarding the complicity of the appellant.
Observations of the court:
The court observed that the Doctor’s evidence runs contrary to the dying declaration made orally by the deceased in the sense that the Doctor not only found injuries that could have been caused on the person of the deceased by means of a sharp-cutting weapon, but he also found two gun-shot injuries, one is an entry wound and the other is exit wound and stated that the oral testimony appears to be shaky and it is very unsafe to come to the conclusion that the declaration is free from any blemishes and could be relied upon by the Court to come to the conclusion that it is a sterling piece of evidence basing on the same, though not corroborated by any other circumstances available on the record and to somewhat contrary to the objective medical evidence, to come to the conclusion that the prosecution has proved its case beyond all reasonable doubts.
The court further referred to the judgments in Irfan alias Naka and Panibet (Smt) Vs. State of Gujarat and stated that the dying declaration, in order to be taken as the basis for conviction, should be of such a nature so as to inspire full confidence of the Court in its truthfulness and correctness. The Court should always be on guard to see that the statement of the deceased was not a result of either tutoring or prompting or a product of imagination.
Further, the court stated that the dying declaration has not been supported by medical opinion in the present case and further the medical evidence has not corroborated the case of the prosecution and thus it was an error on the part of the learned Sessions Judge to come to the conclusion that the appellant has committed the murder of the deceased and, therefore, the judgment of conviction and order of sentence is not sustainable.
The decision of the Court:
The court allowed the appeal and set aside the conviction of the appellant.
Case Title: Shivan Sah @ Shivan Sao vs State of Bihar (now Jharkhand)
Coram: Hon’ble Mr. Justice Sanjaya Kumar Mishra and Hon’ble Mr. Justice Ananda Sen
Case No.: Criminal Appeal (D.B.) No. 182 of 1997(P)
Advocate for the Petitioner: Ms. Anjana Prakash and Md. Jalisur Rahman
Advocate for the Respondent: Mr. Manoj Kumar Mishra
Read Judgment @LatestLaws.com
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