INTRODUCTION:
The admissibility and reliability of dying declaration of the victim have always been a very debatable aspect for the Courts to opine and to base the conviction of the Accused. However, during the past few years through a catena of judgements, the Hon'ble Apex Court and various other High Courts have unearthed this controversial debate by taking a liberal yet pragmatic approach, laying several principles governing its admissibility and reliability. S.32 of the Indian Evidence Act, 1872 gives statutory recognition to dying declarations. Recently, in Purshottam Chopra & Another v/s. STATE (GOVT. OF NCT DELHI) the Apex Court has once again, by revisiting certain judicial precedents in detail, explained the basis and its comparision in relation to dying declaration and self immolation of the victim.
FACTS OF THE CASE:
The Appellants being the original Accused had challenged the judgement and order dated 25th May, 2011 of the Hon'ble Delhi High Court affirming and upholding their conviction under Ss. 302 r/w 34 of the Indian Penal Code. The Appellants are accused of causing the death of one “Sher Singh” by setting him on fire and causing ‘burn injuries involving whole of the body surface area-100% deep burn'. (sic) The Accused died on 19th December,1997.
JUDGEMENT AND ANALYSIS:
The conviction of the Accused was substantially based on the dying declaration of the victim that came to be recorded by the attendant Dr. Sushma and one SI Rajesh Kumar in the hospital. The Appellants challenged the said dying declaration of the victim on various forefronts including that of self-immolation of the victim. By upholding the order of conviction of the Learned Trial Court and of the Hon'ble High Court at Delhi, the Apex Court has reiterated the following pre-requisites for recording of dying declaration and its admissibility and reliability as i). A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court, ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement that was not the result of tutoring, prompting or imagination, iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence, iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail, v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement, vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration, vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement, viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.
While relying on the judgement of the Constitution Bench in the case of Laxman1, the Apex Court dealt with the acceptability of dying declaration and summarily held that “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 Mafabhai Raval 2 the Court held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration and unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor and therefore, the dying declaration was found to be reliable.
One of the several contentions raised by the Appellants was that while cross examining SI Rajesh Kumar, he had stated that “At the spot some public persons had enquired from the victim as to who had put him on fire. He had told them that since he was dropped from the tempo, he had set himself on fire…..” This version of self immolation was heavily relied upon by the Appellants and they further contended that this should be treated as his first dying declaration and the Appellants therefore must be set free. Upon close scrutiny, Apex Court was satisfied that the above version was rightly rejected by the Trial Court and the High Court as not worthy at all. This version for the first time came to light during his cross examination only which was further demolished by himself during cross examination on behalf of Appellant No.2. The Court rightly held that the burden was on the accused persons to establish such theory by cogent evidence. As no such attempt was made by Appellants to prove any such fact or to examine any such named person, this theory of self immolation was considered as remote hearsay and not worthy at all in absence of cogent proof.
CONCLUSION:
To conclude, The Apex Court right from Ram Bihari Yadav 3 till the present case has extensively explained that the probative value of dying declaration depends upon the facts and circumstance of every case. The Apex Court considered such a dying declaration as admissible and reliable as the victim was conscious, oriented and made statements in a fit state of mind and satisfied all requirements of judicial scrutiny thereby establishing the complicity of appellants in the crime.
Footnotes
1 Laxman v. State of Maharashtra reported in (2002) 6 SCC 710
2 Mafabhai Nagarbhai Raval v. State of Gujarat: (1992) 4 SCC 69
3 Ram Bihari Yadav v/s. State of Bihar & Ors., (1998) 4 SCC 517
Originally published 23 July, 2020
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