In Case Of Inconsistency Between Multiple Dying Declarations, One Recorded By Magistrate Or Higher Official Can Be Relied Upon: Jharkhand HC
The Jharkhand High has observed that if there are two dying declarations and there is some inconsistency between them, the statement recorded before the Magistrate or higher official can be relied upon.
An appeal was filed against the judgment of conviction and sentence passed by Sessions Judge in a case arising out of a case under Sections 302 and 34 of the Indian Penal Code, 1860.
The Division Bench of Justice Ananda Sen and Justice Subhash Chand, while relying on Abhishek Sharma Vs. State (Govt. of NCT of Delhi) (2023 SC), observed, “Thus, from the aforesaid judgment, we understand that if the role of two accused can be segregated, it has to be done. Thus, on conjoint reading of the above judgment and the case of Abhishek Sharma (Supra), the Hon'ble Supreme Court has held that if there are two dying declarations and there is some inconsistency between them, the statement, which has been recorded before the Magistrate or the higher official, can be relied upon. Thus, we conclude that since in the dying declaration, given by the deceased before the Judicial Magistrate, the deceased has not taken the name of appellant No. 2 (Gudia @ Guria), there is some element of doubt about her involvement. 33. Thus we hold that there is no infirmity in the dying declaration and the same is without any pressure, fear and coercion and the same is also voluntary, genuine and being free from suspicion and further the same is not tutored and prompted. In that view, the dying declaration, in view of the judgment of Hon'ble Supreme Court, discussed above, can be the sole ground of conviction.”
Advocate Amit Kr. Das appeared for the Appellant whereas APP Pankaj Kumar appeared for the Respondents.
The first appellant was the brother-in-law of the deceased and the second appellant was the sister-in-law. The prosecution case is based on the deceased's statement (dying declaration). Her statement was recorded in the morning. She stated that she was preparing her children for school and her husband had gone for a morning walk. Suddenly, her mother-in-law, brother-in-law and her sister-in-law put kerosene oil on her and lit a fire, as a result of which, she got a burn injury. She further stated that her brother-in-law was caught holding her hands, her mother-in-law sprinkled kerosene oil upon her and her sister-in-law lit the fire. She started screaming and after sometime, the people of the locality came and so did her husband and took her to Gurunank Hospital. She died five days later.
The statement of the deceased was recorded twice, one when the F.I.R. was instituted i.e. based on the fardbeyan of the deceased and the second is the statement of the deceased recorded under Section 164 Cr. P.C.. Both the statements included the name of the Appellant-brother-in-law but the Appellant-sister-in-law’s name was not mentioned in the Statement under Section 164 of the Cr.P.C.
After perusing the contents of both the dying declarations, the Court noted, “Thus from these two statements, we find that there is only one discrepancy in her statement; before the police in the fardbeyan, she had taken the name of her sister-in-law (Nand) who had participated in the occurrence but in the statement recorded under Section 164 Cr. P.C, she has not taken the name of her sister-in-law. In both statements, she has stated that she was burnt in the morning and the reason for this act is that the land the property was in the name of her husband. Thus from both statements, we conclude that there is one minor deviation, i.e. not naming the sister-in-law in the second dying declaration.”
The Court further held, “In this case, as held earlier, we find that there are two dying declarations, thus it is a case of multiple dying declaration and in case of multiple dying declaration, the Court has to be very cautious and see whether the same is voluntary and reliable and whether there is inconsistency or not. Each dying declaration should be scrutinised on its own merit. Further, as per the judgment of Hon'ble Supreme Court in the case of Abhishek Sharma (Supra), if at all there are discrepancies, the statement recorded by the Magistrate or higher official can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicious.”
Accordingly, the Court relied on the dying declaration recorded by the judicial magistrate under Section 164 of Cr.P.C., upheld the conviction of Appellant-brother-in-law and acquitted Appellant-Sister-in-law.
Cause Title: Amir Mallick and Anr. v. State of Jharkhand and Anr.
Appearances:
Appellants: Advocates Amit Kr. Das and Sankalp Goswami.
Respondents: APP Pankaj Kumar, Advocates Asif Khan and Alok Anand.
