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-Report by Zainab Khan

It has been held by Hon’ble SC recently in the case of MAKHAN SINGH Vs STATE OF HARYANA that while recording a dying declaration, the deceased mental and physical health should be checked first so that the declaration can be free from any influence.

FACTS

The appellant was convicted u/s 304 -B of IPC for torturing and poisoning his deceased wife after demanding dowry. The charge sheet was filed against him on basis of two separate dying declarations given by his wife on 21st April 1998 and 24th April 1998 respectively. In the very first dying declaration deceased stated that she was suffering from fever and since many medicines were lying on Angithi by mistake she took medicine of green color. While in her second declaration she stated that the appellant and his parents administered the poisonous substance to her. It is on the basis of these 2 dying declarations, that the trial court declared rigorous imprisonment of 10 yrs to appellant u/s 304-B of IPC and Chandigarh High Court also upheld the trial court decision after reducing appellant’s sentence from 10 yrs to 7 yrs.

APPELLANT CONTENTION

The Learned counsel R.K.Rathore appeared for the appellant. He argued that Session Court and High Court haven’t taken much emphasis on 1st dying declaration which stated that the deceased had taken the wrong medicine by mistake. The deceased gave this declaration to Vani Gopal Sharma, Judicial Magistrate 1st class, being fully conscious and without any influence. She was mentally fit at that time as a certificate was issued confirming the same by Dr.Sobti. He further argued that 2nd dying declaration was taken after 3 days and in between these times the parents of the deceased persuaded her to give a declaration against the appellant. The counsel pleaded that since there’s a conflict in both the declarations, the appellant should get the benefit of the doubt, and the order of conviction should be set aside.

RESPONDENT CONTENTION

Learned Counsel Piyush Hans appears for the respondent. He argued that the trial court’s order is correct as the 1st dying declaration was given by the deceased under the influence of the appellant while the 2nd declaration was given by her free will. The Counsel relied on the judgments of – Harjit Kaur Vs STATE of Punjab, Sayarabano Vs STATE of
Maharashtra, Lakhan Vs State of Madhya Pradesh,
and a few more.

JUDGEMENT

The court decided to examine both declarations independently. The first dying declaration was recorded after obtaining a certificate from the doctors that the deceased was mentally fit, whereas no such certificate was obtained in the second case. Further, the prosecution has not examined the judicial magistrate who recorded the first declaration which creates a doubt about the fairness of the IO. It was observed:

“In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no
circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth
reliance.”

On examining both the dying declarations and witnesses, the court opined that 1st dying declaration is considered to be more reliable and Trustworthy than the 2nd one. The Hon’ble SC while pronouncing its judgment dismissed the orders of High Court of Punjab and Haryana at Chandigarh dated and acquitted the appellant from all the charges.
The court observed-

“The court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording Conviction If found reliable and trustworthy.”

The appeal was allowed.

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