Courts Must Look For Corroborating Evidence If There Exists Any Suspicion Regarding Dying Declaration: Gujarat HC

The Gujarat High Court said that the courts must look for some corroborating evidence if there exists any suspicion regarding the correctness or otherwise of the Dying Declaration.

The Court was deciding a criminal appeal preferred by the State against the judgment of the Additional Sessions Judge, acquitting accused persons from the offence under Sections 302, 323, 365, 342, 147, 148, and 149 of the Indian Penal Code (IPC).

A Division Bench comprising Justice Ilesh J. Vora and Justice Niral R. Mehta observed, “The law is well settled that an oral Dying Declaration can form the basis of conviction if the deponent is in fit condition to make the declaration and if it is found to be truthful. The Courts as a matter of prudence look for corroboration to oral Dying Declaration. However, if there exists any suspicion as regards the correctness or otherwise of the said Dying Declaration, the Courts in arriving at the conclusion of conviction, shall look for some corroborating evidence.”

Additional Public Prosecutor L.B. Dabhi represented the appellant while Senior Advocate Tejas Barot represented the respondents.

In this case, in the year 1997, the deceased and his son were killed at the farm of the accused no. 2. The father and son were abducted and wrongfully confined by the accused and there was a suspicion that the deceased had stolen gunny bags of the principal accused. The accused went to the house of the deceased and his wife was found alone at the house. The accused nos. 4 and 2 went to the market in search of the deceased and subsequently, he was brought back by them at his house. The father and son were taken to the farm of the accused no. 2 and by using wooden logs and giving fist and kick blows, they mercilessly caused fatal injuries to both. As a result, the father died at the place, whereas the son was in semi unconscious state of mind and was declared dead on arrival at the hospital.

The entire incident was being seen by the complainant (wife of the deceased) as she also came at the farm after the incident of abduction. The accused nos. 3 and 8 after the incident, came to the police station and informed that they caught the thieves of the gunny bags who are at their farm. The police found the dead body of father over there and heard that his son was asking for water. Before they could reach at the hospital, the son made a declaration orally that, he and his father were assaulted by the accused persons. Since the Trial Court acquitted the accused persons, the State filed an appeal before the High Court.

The High Court after hearing the contentions of the counsel enunciated, “The Apex Court in its various pronouncements observed and held that a mechanical approach in relying upon the Dying Declaration just because it is there, is extremely dangerous and it is the duty of the Court to examine a Dying Declaration scrupulously with a microscopic eye to find out whether the Dying Declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency, who may be interested in the success of investigation or which may be negligent while recording the declaration.”

The Court took note of the fact that the family members of the deceased examined before the Trial Court neither pointed out that the deceased made an oral dying declaration before the police, nor threw any light on the issue of oral dying declaration.

“The witness PW-16 Janardan Mahida in his deposition has not stated that at the time of oral declaration, the deceased was in a fit state of mind and was able to understand what he is speaking. In such circumstances, the trial Court has rightly seek corroboration to the oral declaration as within three to four minutes, the deceased succumbed to his injuries, which factors weighed to come to a conclusion that the oral declaration made before the witness cannot be formed basis of conviction”, it added.

The Court further said that the reasons for not accepting the oral Dying Declaration are reasonable and based on the evidence on record and the view taken by the Trial Court is plausible and there is no perversity in the findings brought to the notice of the court so as to interfere.

“Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same”, it concluded.

Accordingly, the High Court dismissed the appeal.

Cause Title- State of Gujarat v. Shashikant Gordhanbhai Patel & Ors.

Appearance:

Appellant: APP L.B. Dabhi

Respondents: Senior Advocate Tejas Barot, Advocates HM Parikh, PR Nanavati, Rhea Chokshi, and B.S. Khatana.

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