Admissibility of more than one Dying Declaration - Rajaram Vs State Of Madhya Pradesh & Ors
Hon’ble Justice Ravindra Bhat and Justice Sudhanshu
Dhulia of Supreme Court set aside impugned judgment and conviction of
appellant, Rajaram under 302 and Section
498A of IPC by the trial Court and affirmed by the High Court of Madhya Pradesh
on the basis of first dying declaration. The Hon’ble Court hold the conviction
on the first dying declaration as unsustainable whereas the second dying
declaration, which contained the name of the appellant was the only piece of
evidence and was discredited by the High Court [
FACTS OF THE CASE
Information
was received by Police from the hospital that a woman was brought by her
husband in a burnt condition. Her dying declaration was recorded. Statements of
witnesses were recorded. Two dying declarations were recorded before she died. First one was recorded by Naib Tehsildar,
certified by the doctor and the second one was recorded by the police without
obtaining fitness certified from the doctor. In
the first dying declaration, the appellant was not been named and in the second
dying declaration acts of cruelty had been elaborated.
The injured victim
succumbed to injuries. After completing the investigation, police filed the
charge sheet against the appellants for offence under Section 302, 340B,
498A/34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition
Act.
The trial Court, by
order framed charges under Sections 498A, 302 and 304B against appellant and
family members. The Trial Court by the impugned judgments convicted appellant
and other family members/accused for the offence under section 498A IPC. The appellant and other accused challenged
their conviction and sentence before the High Court through appeal. But it was
rejected and their conviction was affirmed. The High Court held the second
dying declaration recorded by officer-in-charge cannot be relied because of the
statement she made that her ‘condition was bad’. The Court also thought unsafe
to rely such a police statement.
The High Court rejected
the second dying declaration because the Court was of the opinion that last
line of the dying statement indicated that her condition was bad and it was
unsafe to rely on such a police statement.
SUBMISSIONS
OF THE PARTIES
Learned Counsel for the
appellant submitted that deceased’s family did not support the prosecution
version about cruelty inflicted upon her. So his conviction was unsustainable.
He argued that where a statement is made by a person as to the cause of her death
or as to any of the circumstances of the transaction resulting in death, that
statement would be admissible. It was argued that hence, allegations made by
the deceased against the accused, i.e., the appellant, Rajaram, in her dying
declaration would be inadmissible as they were not of the circumstances of the
transaction which resulted in her death.
The Court below fell into error in not
giving weight to the significant contradictions between the dying declarations
– he urged.
He also submitted the
inclusion of the appellant in the later dying declaration is untrustworthy. The
absence of doctor when the statement was recorded and the fact that the
appellant was named in the first dying declaration, but in the second dying
declaration renders both the dying declaration unbelievable. The High Court
discarded the second declaration, he submitted
Lastly, the counsel urged
that the prosecution could not prove the charge on the count under Section
304B. So he could not have been convicted on the basis of the dying declaration
because Section 32 of the Evidence Act renders relevant only statements
relating to the circumstances surrounding the death of the person making it and
that in the present case, the only dying declaration does not mention any act
of cruelty attributable to the appellant.
Learned counsel on
behalf of the State calling for non interference with the concurrent findings
of Court below argued that the findings were based on the evidence that was led
and that the appeal involves appreciation of evidence.
There was close
proximity between the first and second statements. The first dying declaration
listed the actual perpetrators of the crime, which is those responsible for
dousing the decease with kerosene and setting her on fire whereas the second
dying declaration contained details of the cruelty meted out to her since she
had a disability and had a girl child. The appellant and his family treated her
cruelly, taunted her, and demanded dowry – the counsel for State submitted.
It was also submitted that the absence of any
endorsement by a doctor about the mental condition, or fitness to record the
statement, or that it was recorded by a policeman cannot ipso facto result in
its being ruled out.
Read Also: Chance Witness and its Evidentiary Value
ANALYSIS AND FINDINGS
The Supreme Court referred to previous judgments
based on the submissions and arguments of the learned Counsels of both parties.
The Court relied on a
position of law held by five-member Bench in the case of Laxman vs.
State of Maharashtra (2002). In short, it was held ‘there is no
requirement of law that a dying declaration must necessarily be made to a
Magistrate and when such statement is
recorded by a magistrate there is not specified form for such recording.
Consequently, what evidential value or weight has to be attached to such
statement, necessarily depends on the facts and circumstances of each
particular case. What is essentially required is that the person who records a
dying declaration must be satisfied that the deceased was in a fit state of
mind.
Where it is proved by the
testimony of the Magistrate that the declarant was fit to make the statement
even without examination by the doctor the declaration can be acted upon
provided the Court ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of caution and therefore the
voluntary and truthful nature of the declaration can be established otherwise”
In Lakhan vs. State of Madhya
Pradesh (2010), the Court which considered the approach that may be
adopted where the evidence includes multiple dying declarations was reiterated
in this present case.
In Lakhan’s case, it was held –
“.............In
case there are multiple dying declarations and there are inconsistencies
between them, generally, the dying declaration recorded by the higher officer
like a Magistrate can be relied upon, provided that there is no circumstance
giving rise to any suspicion about its truthfulness. In case there are
circumstances wherein the declaration had been made, not voluntarily and even
otherwise, it is not supported by the other evidence, the court has to
scrutinize the facts of an individual case very carefully and take a decision
as to which of the declarations is worth reliance.”
In cases involving
multiple dying declarations, Supreme Court referred to the case namely Jagbir
Singh vs State of NCT Delhi (2019) 8 SCC 779 which re-stated the law on
the following principles that can be culled out –
- In a case where there are more than one dying
declaration, one dying declaration may entirely agree with one another or there
may be inconsistencies between the declaration. The extent of the inconsistencies
would then have to be considered by the court. The inconsistencies may turn out
to be reconcilable.
- In such cases, where the inconsistencies go to
some matter of detail or description but is incriminatory in nature as far as
the accused is concerned, the court would look to the material on record to
conclude as to which dying declaration is to be relied on unless it be shown
that they are unreliable;
- The
third category of cases is that where there are more than one dying declaration
and inconsistencies between the declarations are absolute and the dying
declarations are irreconcilable being repugnant to one another. In a dying
declaration, the Accused may not be blamed at all and the cause of death may be
placed at the doorstep of an unfortunate accident. This may be followed up by
another dying declaration which is diametrically opposed to the first dying
declaration. In fact, in that scenario, it may not be a question of an
inconsistent dying declaration but a dying declaration which is completely
opposed to the dying declaration which is given earlier. There may be more than
two.
- In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?”
Therefore, the Court
was of the opinion, after taking reference from above mentioned cases, where that dying declaration
of deceased specially of the victim of burns and had succumbed to burn
injuries, two dying declaration was made prior to death, the principle
enunciated in the above mentioned case has to be adopted if it indicates the
test of credibility having regard to the overall facts on record.
Lastly, top Court was
of the view that since the second dying declaration has been discredited by the
High Court though it was the only piece of evidence against the appellant,
there is no other material to sustain his conviction. Hence allowed the appeal
by setting aside impugned judgment and conviction and sentence.
Criminal Appeal No(S). 2311 Of 2022.
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