Dying Declaration Can Be Made Basis Of Conviction If It Is Free From Suspicion And Doubt: Bombay HC
The Bombay High Court, Aurangabad Bench has reiterated that a sole dying declaration can be made a basis of conviction if it qualifies the test of truthfulness and voluntariness, and if it is free from suspicion and doubt.
A Division Bench of Justice Vibha Kankanwadi and Justice Y.G. Khobragade held, “It is trite law that sole dying declaration can be made basis of conviction, if at all it qualifies the test of truthfulness, voluntariness and if it is free from suspicion and doubt. There are various rulings of Hon'ble Apex Court regarding evidentiary value of Dying Declaration. It has been held time and again that accused being deprived of cross-examination, Court has to be very careful and cautious while assessing Dying Declaration. It is expected that Court should be on guard that the statement of deceased was not a result of either tutoring, prompting or product of imagination. It is further expected of the Court to satisfy itself that the deceased was in a fit state of mind to give dying declaration.”
The Bench observed that “man may lie but circumstances do not” and that there may be many reasons for a person resiling from his earlier statement, but the entire testimony of such a witness cannot be discarded and they will have to be considered in their proper perspective.
Advocate G.K. Chinchole appeared for the appellants while APP S.J. Salgare appeared for the respondents.
Facts -
A set of two appeals arose out of the conviction awarded to the appellants by the Additional Sessions Judge. A dispute arose on account of the partition of the land and both accused abused and assaulted the deceased with fist blows and thereafter the second accused poured kerosene on the person of the deceased.
The first accused ignited the match stick and put the deceased to fire who was then shifted to a hospital. Her Dying Declaration was recorded by Assistant Sub Inspector and the said dying declaration was treated as FIR and a case came to be registered under Section 307, 504, 506 read with Section 34 of the Indian Penal Code.
The High Court after hearing the arguments of the parties noted, “… we conclude that the Dying Declarations are properly and legally proved and they are giving a clear picture. All the Dying Declarations have arrayed both the accused with specific role attributed to them. It cannot be said that act of pouring of kerosene and igniting the match stick throwing it on the informant on whom already kerosene was poured; cannot be said to be without intention of committing murder. Definitely, both the accused had knowledge about the consequences of the acts done by them. Therefore, when the Dying Declarations are inspiring confidence, conviction can be based on the Dying Declarations.”
The Court further said that the admission of a document by the accused may be from one angle, but if it is to be used against the accused, then, there must be a question in respect of the same in the statement of the accused under Section 313 of the CrPC, otherwise, the said admitted documents also cannot be considered or used against the accused.
“We would also like to say that it is not only the job of the Presiding Officer of any criminal trial to prepare the questions to be put under Section 313 of the Code of Criminal Procedure to the accused, rather after the insertion of sub-section (5) of Section 313 of the Code of Criminal Procedure with effect from 31.12.2009 the Court can take help of prosecutor as well as defence counsel in preparing relevant questions, which are to be put to the accused under Section 313 of the Code of Criminal Procedure and further the Court may permit filing of written statement by the accused as sufficient compliance of Section 313 of the Code of Criminal Procedure”, said the Court.
The Court, therefore, held that the prosecution had proved all three Dying Declarations beyond reasonable doubt and those were sufficient to convict the accused persons and that the act of the accused persons was with an intention to kill. It also observed that the Trial Judge rightly held that the prosecution has proved the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and that the acquittal of both the accused is proper and legal.
Accordingly, the Court dismissed the appeals.
Cause Title- Chandrabhagabai v. The State of Maharashtra
