The Supreme Court recently comprising of a bench of CJI NV Ramana, Justice Surya Kant and Justice Aniruddha Bose reiterated that a Court must be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration. (Jayamma vs. State of Karnataka)
Facts of the case
In this case, the Karnataka High Court reversed the acquittal recorded by the Trial Court and convicted the accused in a murder case. The High Court to convict them relied on the dying declaration made by the deceased.
They have been convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) and consequently sentenced to life imprisonment.
Contention of the Parties
The principal contentions raised on behalf of the appellants are that the High Court’s order is totally cryptic and it erroneously reversed the well-reasoned order of acquittal passed by trial Court.
Relying upon a catena of decisions of this Court including in the cases of Chandrappa v. State of Karnataka , Perla Somasekhara Reddy and Others v. State of A.P., State of Rajasthan v. Shera Ram, Shyam Babu v. State of Uttar Pradesh , Murugesan v. State , Mookkiah v. State, and Shivasharanappa v. State of Karnataka , it was urged that the High Court while interfering with an order of acquittal was under an onerous duty to scrutinize the evidence on record, and should return a categorical and cogent finding as to why it was impossible to sustain the order of the trial Court or why it deserved interference.
It was contended that neither did the High Court evaluate the entire evidence nor it dealt with the specific findings of the trial Court, and as such, the High Court failed to discharge its obligation under Section 378 CrPC. It was further argued that in the facts and circumstances of the present case, Ex. P-5 i.e., the purported dying declaration cannot form the sole basis to convict the appellants. Relying upon the decision of this Court in Surinder Kumar v. State of Haryana, it was canvassed that since the document Ex.P-5 was shrouded with doubtful circumstances, the same cannot be acted upon to be the solitary basis for conviction in the absence of any corroboration.
The Learned State Counsel supported the conviction awarded by the High Court. He drew the courts attention to paragraphs 4 and 6 of the impugned order to suggest that the High Court had not only given a well-reasoned judgment but also buttressed it with specific reasons, warranting interference in the order of acquittal. He placed Reliance on Vijay Pal v. State (Government of NCT of Delhi) in order to contend that even in cases of hundred percent burn injuries, the Courts can rely upon the dying declaration to convict the accused.
Courts observation & Judgment
Referring to the precedents like [ P.V. Radhakrishna. v. State of Karnataka, (2003) 6 SCC 443 , Sham Shankar Kankaria v. State of Maharashtra, (2006) 13 SCC 165, Chacko v. State of Kerala 2003) 1 SCC 112, Surinder Kumar v. State of Haryana (2011) 10 SCC 173], the court noted the following factors in the appeal to reverse the high court order,
- Interpolation in Dying Declaration
- The possibility of the victim not fit to give any statement owing to 80% burn injuries could not be ruled out.
- PW-2, son of the deceased himself has stated that his mother committed suicide as she could not bear that her another son had been sent to jail
- Contradictions in the statements of the police officer and the doctor with respect to the nature of injuries on palm.
- No endorsement of ‘Fit State of Mind’ before recording the dying declaration.
- Unusual conduct of relatives of not registering a complaint, which supported the alternate theory that the victim might have committed suicide.
- Prosecution had sufficient time to call a Judicial Magistrate to record the dying declaration, however, it failed to do so.
The Court observed,
15.It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.
16.......Although there is neither a rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.
In Sampat Babso Kale and Another v. State of Maharashtra 2019 (4) SCC 739, the bench said, it was noted that "the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."
The court also noted that, in this case, the prosecution had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. Further, the police officer admitted that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement.
The bench while setting aside the conviction of the accused observed, "22.... It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. We hasten to add that the law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case".
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