Tag: #dyingdeclaration

-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.

-Report by Rhea Mistry

In Kamal Khudal v. the State of Assam, the supreme court stated that conviction can depend upon a dying declaration after corroborating and checking whether the said dying declaration is true. Even if the dying declaration is not corroborated, the court can move forward with the decision relying on it without any further verification.

Kamal Khudal is a convict, appellant herein, and has appealed to the supreme court to dismiss his punishment. Kamal Khudal and two others were accused of the murder of the deceased, Uttam Datta, and charged with an offense punishable under section 302 read with section 34 of the IPC.

In the judgment dated 10.06.2010, the two accused, Munna Bhoi and Kamal Khudal were charged with life imprisonment with a fine of Rs. 2000/- each, and if there is a default in payment of the fine, further punishment of rigorous imprisonment for a period of two months. Bipin Bhoi, the third co-accused was granted the benefit of the doubt and acquitted from the punishment.

In that case, on 15th July 2007 at 7 am, the co-accused, Munna Bhoi had come to receive the deceased, Uttam Datta, for paddy plantation adjacent to his liquor local shop. When the deceased had left with the co-accused, the brother of the deceased was present at home. After working in the field for some time, the deceased had tagged along with Munna Bhoi to his liquor shop where there was some commotion detected after going in shop as said by
the locals in its vicinity area.

After a few minutes of commotion, the deceased had come out with burns all over him, and this was witnessed by a local, Hanu Khetrapal. When asked about what had happened, the deceased had told him that the accused had poured hot Lali (the raw material used to make liquor) over him which caused him the burns. The deceased left and later his dead body was found in the drain of Duribam Tea Estate.

The learned counsel of the appellant asserted that the court had made an error in deciding the case. He stated that the judge considered the dying declaration without any corroboration and verification, and said the case is “reliable in legal evidence”. Arguing that as per the rule of prudence, the learned counsel stated the court should rely upon corroboration before relying on the dying declaration. The presence of the brother of the deceased, while the deceased went along with the accused, does not prove anything and cannot be considered as last seen together.

According to the medical reports of the postpartum of the deceased done by Dr. Nirmal Chutia, he examined that the deceased had healthy organs, but burns all over his body. His body has 75% of burns which caused multiple dark ecchymosis on his skin. Ecchymosis means discoloring of the skin resulting from blood underneath. He certified that the marks and injuries were caused after the death of the deceased and that the cause of death was shock and hemorrhage resulting from chest & skull injuries and skull injuries, including that on the thorax, multiple injuries had been detected.

The Supreme Court stated that the High Court decided the case accepting the dying declaration. The court said

“The law regarding the nature, scope, and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity for the accused even to put it through the fire of cross-examination to test is genuine or veracity. The court has, therefore, subjected it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises.”

The maxim “Nemo moriturus praesumitur mentire” is put to use here which means that a person does not go to his creator with a lie in his mouth. The court believes that when a man is on the brink of death, the person will not lie.

The SC also stated that the appellant was arrested on 23rd July 2007 when he was supposed to be arrested on the 15th of July 2007. And that the appellant has not revealed what or where he was from the 15th of July to the 23rd of July. This proves that he was absconding. The Supreme court dismissed this appeal stating that there is no reason for them to interfere in the appeal and the judgment made by the High Court stands by.

Case number

Criminal Appeal No. 573 of 2016.

Equivalent citation

(2021) 6 SCC 213.

Bench

CJI N. V. Ramana, Hon’ble Justice Surya Kant and Hon’ble Justice Aniruddha Bose.

Date of Judgement

May 7, 2021.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860” and the “Code of Criminal Procedure, 1973”.

Facts of the case

Both parties were very much related to each other. There had been clashes going on for a long time between the family of Jayamma (appellant), who is the wife of Reddinaika and the family of Jayamma (respondent), who was the deceased wife of Sanna Ramanaika. An argument took place between the two families in 1998 on September 10. During this argument, Reddinaika was assaulted by Ramanika’s son, i.e., Thippeswamynaika. After this incident happened, the appellants arrived at the respondent’s place on 21 st September to confront them about the actions of Ramanaika’s son. A sum of Rs. 4000 was also demanded by the appellants in order to cover the medical treatment costs. A heated altercation happened, as a result of which the appellant party poured kerosene on Jayamma (who is now deceased) and set her on fire. The appellants were explicitly blamed for the death of Jayamma (respondent). Jayamma’s family members heard her screams and tried to set off the fire. In the meantime, the appellants ran away from the scene. Jayamma was then admitted to a “public health entre”. Jayamma was given pain killers and basic treatment by Dr A. Thippeswamy. A medico-legal case was then sent to the Thalak police station. Jayamma gave her statement and she had implicated the whole appellant party under “sections 307, 504, 114” read along with “section 34” of the IPC. Finally, on September 23, Jayamma passed away. The post-mortem report said that she died due to shock which came as a result of her injuries. The appellants got arrested, but with the help of anticipatory bail, they had to be released. When the matter was presented in the trial court, a number of witnesses turned hostile. The issue then was whether Jayamma’s death was suicidal in nature or if it was homicidal. It was noted by the court that all of this was based on the dying declaration of Jayamma. The accused were not convicted due to a lack of genuineness and evidence (except for the dying declaration). Therefore, the court acquitted the appellants. During the High Court hearing, it was decided that the judgement of the trial court would be reversed. The HC of Karnataka decided that a dying declaration was enough to convict an accused. The Hon’ble court convicted the accused under “section 302” read with “section 34” of IPC.

Issues

1. Was it right on the High Court’s part to reverse the decision taken by the trial court?
2. Was it successfully established that Jayamma’s death was not suicidal, and instead was homicidal in nature?

Arguments

• Argument made by the appellants:
  The appellant’s side claimed that the decision taken by the trial court was well structured, unlike that of the High Court which was vague and confusing. It was also contended that the High Court failed to examine the conclusions of the trial court. Thus under “section 378” of the CrPC “, it failed to discharge its obligation”. They claimed that a decision should not be taken just on the basis of a dying declaration and that the motive of the appellants could not be established. Hence, the acquittal is incorrect.
• Argument made by the respondent:
  The learned counsel contended that in cases of death from 100% burn injuries, the dying declaration can be considered enough for a conviction.

Judgement

After a thorough investigation, the Supreme Court found that some modifications had been done in the dying declaration and that the HC of Karnataka had unnecessarily depended a lot on just the dying declaration. The Court also concluded that since Jayamma was in a lot of pain she might have not been in a state to give a proper statement before dying. Hence, the Apex Court decided to acquit the appellants in the present case. The Court also mentioned that high accuracy had been maintained in the dying declaration which was unlikely for an individual who was in such physical condition and also Jayamma was not that literate to describe the whole situation with such details. Jayamma was alive for almost 30 hours, but the authorities did not contact the Executive Magistrate to record the statement of the patient. Hence, the apex court was not convinced enough to accept the dying declaration as the sole piece of evidence to convict the appellants. The Court also pointed out the fact that it was not a family member who had complained to the police, instead it was the doctor. Thus, this also questions the homicidal nature of death. Apart from these, it was also held that it was unfair on the High Court’s part to exercise “section 378” of the CrPC, that too when the trial court gave a right decision.

Conclusion

This is an important judgement that primarily talks about the usage of dying declaration as the sole piece of evidence in any case. A point that should be noted here is that it took so many years to serve justice to Jayamma and her family. During this course of time, the family had to go through a lot. There are so many cases in India that are pending, and the party that suffers the most in these cases are one of the parties. Also, it is not fair to assume that the investigation done by lower courts is inadequate or incorrect. The Supreme Court had given a very detailed and reasonable judgement in this case. This judgement is one of the most significant judgements of 2021.

This article is written by Aaratrika Bal student at National Law University Odisha.