By- Astha Satsangi
(Student of Faculty of Law, Delhi University)
Topic of Law of Evidence- Dying Declaration
Facts of the Case:
This appeal is being made in The Honourable Supreme Court Of India against the concurrent judgement of the Nagpur High Court under Article 134(1)(c) of the Constitution. The courts below have given an order to convict the appellant Khushal rao and sentencing him to death under Section 302 of The Indian Penal Code for murdering Baboolal.
This case is of the two rival factions in the mill area of Nagpur. The Highcourt acquitted the appealant and Tukaram who were the leaders of one of the faction. And Ramgopal(PW4) and Tantu(PW5) were said to be the leaders of the other faction. There had been a number of incidents between the two rival factions before this occurrence. The prosecution alleged that Khushal was having bad terms with Baboolal who was having friendly terms with the leaders of the opposite faction. Tukaram, Khushal, Sampat and Mahadeo suddenly attacked Baboolal with Swords and Spears and inflicted injuries on the various parts of his body by being enraged by the conduct of Baboolal in associating with the party of the accused. This incident took place at about 9:00 p.m. Then at about 9:25 p.m. Baboolal was taken to the Mayo Hospital by his father and other persons. On reaching the Hospital, Dr Kanikdale(PW14) was the attending doctor, who questioned Baboolal about the happening of the incident, on which he made a statement that he had been assaulted by Khushal and Tukaram with swords and spears, which the doctor noted in the bed-head ticket. After it, the doctor informed the Ganeshpeth Police Station by telephone where the information was noted at 9:45 p.m. Inspector A.K.Khan registered and recorded an offence under Section 307 of The Indian Penal Code after receiving this information he immediately went to the Mayo Hospital along with several constables and a head constable. He was suspecting that Baboolal might not servive by seing his critical condition and apprehending that he thought it might take time for the Magistrate to arrive on the spot, to record the Dying Declaration, so he consulted Dr. Ingle about the fit condition of Baboolal so that he can make a statement. Doctor advised him to have the dying declaration recorded by the Magistrate but the Sub Inspector decided that the dying declaration should be recorded by him without any delay. Hence he recorded the statement of Baboolal in answer to the questions put by him at 10:15 p.m. Meanwhile, a Magistrate, First class was called in and he recorded the dying declaration between 11:15 and 11:35 p.m. in presence of Dr. Ingle who certified the mentally fit condition of Baboolal to make his dying declaration. Baboolal has said to made oral declaration to a number of persons apart from these three successive dying declarations made to responsible public servants. But these oral dying declaration is set aside because High court has not acted upon such oral declarations. Baboolal died in the next morning at about 10 a.m. in the hospital.
Issues of the Case:
1. Whether the accused could be convicted only on the basis of those Dying Declarations or the declarations needed corroboration?
2. Whether it is settled law that a Dying Declaration by itself, can, in no circumstances, be the basis of a conviction?
Contention of the Appellant:
The appellant contended that it is not safe to convict an accused person merely on the evidence, furnished by a dying a declaration without any further corroboration because such a statement is not on oath and is not subject to cross-examination. And also the person making such dying declaration might be drawing upon his imagination at the time when he was making the declaration or he might be mentally and physically in a state of confusion.
Contention of the Defendat:
The prosecution contended that the appellant was on bad terms with Baboolal and Baboolal was on friendly terms with leaders of the opposite rival faction. Khushal, being enraged by this conduct of Baboolal in connecting with the group of the enimies of the party of accussed Mahadeo, Sampat, Tukaram and Khushal all of asudden attacked Baboolal with swords and spears and inflicted injuries on different parts of his body, which resulted in the death of Baboolal. So the accussed should be convicted on the basis of the Dying Declaration giving by Baboolal in the hospital to the doctor, Sub-Inspector and Magistrate for the offence of murder.
Also the prosecution contended that these Tukaram and Khushal were absconding and keeping out of the way of the police as they could not be found at their respective houses by the Police. Khushal was arrested by the police after four days later of the incident in a bungalow, and Tukaram was arrested much later.
Legal Provisions used:
Let us first have a look on section 32(1) of The Indian Evidence Act, 1872 which basically talks about the dying declaration. The contents of the section is as follows:
“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:-
1. When it relates to cause of Death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted into the his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
Basically dying declaration is based on the maxim- “Nemo mariturus presumunter mentri” Meaning a man will not meet his maker(God) with a lie in his mouth. And also Leterem mortem (i.e., words said before the death) will not be a lie by a person knowing that he will pass away soon.
This provision under section 32(1) has been made by the legislature as a matter of absolute necessity by way of an exception to the general rule that hearsay is not the evidence and also the fact that an evidence which has not been tested by the cross-examination is not admissible. The sole purpose of the cross-examination is to check the truthfulness of the statements made by witnesses. But in the view of the legislature, at the time when person making the statement is in danger of losing his life, this test is supplied by the only occasion when it was made. At such serious and earnest moment, when that person is not expected to tell lies, the test of cross-examination would not be available. And the necessity of oath in such a case has also been dispensed with for the same reasons. Therefore, a statement made by a dying person with respect to the cause of his death, has been granted by the legislature, a special sanctity which should be respected, unless there are clear circumstances given out in the evidence to show that the person was not in expectation of death who is giving the statement, and not that the circumstances would affect the admissibility of the statement, but only its weight.
In the opinion of the court, there is no rule of prudence and also there is no absolute rule of law, which has developed into a rule of law, that an uncorroborated dying declaration by other independent evidence, is not fit to be acted upon and made the basis of a conviction.
On the other hand various high courts have different conflicting decisions regarding the dying declaration that such declaration cannot become a sole basis of conviction of a accussed. Like in the case of Emperor v. Akbarali Karimbhai [ILR (1932) 58 Bom 31] , a division bench of Bombay High Court held that a statement which is covered under section 32(1) of The Evidence Act is a weaker type of evidence as such a statement is not made on oath and is not subject to cross-examination. Therefore, it will not be safe to rely upon a part of dying declaration, if a part of such declaration is deliberately false. But the bench also put the emphasis on the fact that it is not correct to assume that because some part of the dying declaration is false, the whole declaration must necessarily be disregarded. Therefore, the Bombay High Court did not agree with the observation of the Calcutta High Court in Emperor v. Premananda Dutt [ILR (1925) 52 Cal 987] that it is not acceptable that a dying declaration should be accepted in part and reject the other part.
Observations of The Supreme Court:
After reviewing of the relevant provisions of the Evidence Act and having a view on the decided cases, the Court has given certain guidelines as to the validity or admissibility of dying declarations (DD). These are:
1. It can not be said as an absolute rule of law or as a rule of prudence that a Dying Declaration can not form the only basis of the conviction of the accussed unless such DD is corroborated.
2. In keeping in view the facts of the each case, it should be decided by examining the circumstances in which the DD was made.
3. DD is a weaker kind of evidence – it cannot be laid down as a general principal.
4. A DD has to be judged in the context of surrounding circumstances and also with the reference to the principles governing the of the weighing of evidence and also it rests on the same basis as any other chunk of evidence.
5. Where a DD has been recorded in the proper manner that is in question and answers form and as far as realistic in the own words of the maker of a declaration by a competent Magistrate, rests on a much higher basis than that of a DD which depends upon oral statement which can also suffer from various weaknesses of the human character and his memory.
6. The Court has to keep in view various circumstances in checking the reliability of a DD, like the opportunity for the observation of the dying man. E.g.
a) That whether there was enough light for the deceased to see his assailants, if the crime was committed at night.
b) That whether the ability of the man to remember the facts said, had not been harmed at the time when he was making the statement, by state of affairs far away from his power.
c) That if he had separate opportunities to make a dying declaration, his statement has been consistent throughout.
d) And that the statement was not the result of tutoring by interested parties and had been at the earliest opportunity.
To pass the test of reliability, a DD has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accussed who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the DD was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand,the court, after examining the DD in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from infirmity, then, without corroboration, it cannot form the basis of a conviction. Thus, the necessity for corroboration, does not arises from any inherent weakness of a DD as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that particular DD was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.
Judgement:
Having made the general observations Bearing on the question of legality of basing a conviction on a DD alone, and keeping in view the tests set out above, the Court examined the DD in question before them. The most remarkable fact which emerges from an examination of the three successive DDs made in the Court in about two hours, by the deceased, is that he steadily was naming Tukaram and Khushal that they have assaulted him with sword and spears. The injuries found on his person who had assaulted him with sword and spear. The injuries found on his person, namely, the punctured wounds and the incised wounds on different parts of his body, are entirely consistent with his statements that he was being attacked by several persons with dangerous cutting and drilling weapons. No part of his DD has been shown to be false.
The courts below also agreed in holding that Baboolal was in a condition to see his assailants and to recognize them in the light of the electric lamp. Courts have also indicated that there was no ‘tutoring’. There is no doubt that the deceased had been consistent throughout in naming of the appellant accused as one of his assailants and he named him within less than half an hour of the occurrence and as soon as he reached the hospital. Thus, there was, no such opportunity or time to tutor the dying man to tell a lie. At all important times, he was in a proper state of mind in spite of multiple injuries on his person, to remember the names of the assailants. Hence, the Court had no reasons to doubt the truth of DDs and their Reliability. The Court also had no doubt that from the legal and from practical points of view, DD of Baboolal are sufficient to sustain the appellant’s conviction for Murder. This appeal was, accordingly, Dismissed.
References:
1. The Constitution of India, 1949
2. The Indian Evidence Act, 1872
3. Case material of Law of Evidence of Delhi University
4. The Law of Evidence book by Ratanlal Dhirajlal (27th addition)
5. https://www.delhilawacademy.com
[DISCLAIMER: This case analysis is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].