While entertaining a criminal appeal, a division bench of the Chhattisgarh High Court comprising of Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ ruled that a police officer should not re-record a dying declaration that has previously been recorded by an Executive Magistrate, who has the legal power to do so.
The appeal was allowed given the manner of the recording of the second dying declaration.
Brief Facts:
At around 10:00 PM on July 19, 2012, the deceased's husband allegedly tried to strangle her and began verbally assaulting her. The deceased's mother-in-law and sister-in-law then set her flame after he doused her body in kerosene. She was ultimately saved by her sister- and brother-in-law and taken to a hospital. On July 24, 2012, around 3:30 PM, an Executive Magistrate recorded her dying declaration at the request of the investigating agency. Then, unexpectedly, at 4:45 PM on the same day, a Head Constable recorded a different death declaration in the form of dehati nalishi. She passed away from her wounds on July 25, 2012. Following a thorough investigation, charges were laid against the appellants under Sections 302 read with Sections 34 and 498A of the IPC. After the trial was over, the trial court issued the challenged judgement dated January 27, 2014, in which it found the appellants guilty and punished them.
Contentions of the Appellant:
The appellants argued that the deceased's parents were present when the first dying declaration was made, especially as there was no doctor's certification of the deceased's mental or physical fitness at the time. So, it was argued that the deceased was influenced by them. Furthermore, it was suggested that the Head Constable's recording of the dying declaration in the form of a dehati nalishi is a dubious and suspicious document.
Contentions of the State/Respondent:
On the other side, the State defended the contested decision and argued that the trial court was fully right in convicting the appellants because the prosecution had established their guilt beyond a reasonable doubt with regard to the charges brought against them.
Observations of the Court:
After perusing the evidence on record the court opined that in the absence of certification by a doctor and in the absence of any satisfaction recorded by the Executive Magistrate while recording the dying declaration that the deceased was mentally and physically fit to make the dying declaration, and the presence of the deceased's parents, particularly the mother holding her, and the presence of police personnel at the time of making the dying declaration, as the possibility of her being influenced cannot be ruled out. The court was startled to learn that only an hour after the first dying declaration was recorded by a legally competent authority, i.e., an Executive Magistrate, a Head Constable went to record the second dying declaration.
Relying on the Apex court’s case of Dalip Singh and others v. State of Punjab (1979) 4 SCC 332, the court reiterated that the practise of the Investigating Officer recording a dying declaration during the course of an investigation should be discouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be used, and the one recorded by the police officer may be relied on if the prosecution did not have the time or resources to use a better method. As a result, the court ruled that the Head Constable's second dying pronouncement was utterly superfluous and uncalled for.
Decision of the Court:
The appeal was allowed.
Case Title: Sumitra Bandhe v State of Chhattisgarh
Case No.: Criminal Appeal No.292 of 2014
Coram: Justice Sanjay K. Agrawal and Justice Shri Radhakishan Agrawal
Advocate for the Appellant: Mr. Praveen K. Dhurandhar
Advocate for the Respondent: Mr. Animesh Tiwari
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