A DYING DECLARATION
Is NOT INVALID, merely because it was not certified by a Doctor, declared Supreme Court on hearing a case regarding the questionability, maintainability of the same. The Supreme Court has acquitted a convict by setting aside the judgement of the High Court of Chhattisgarh which had convicted her for murder, after finding lacunae in the dying declarations.
In a case, where one Poonam Bai was found by the HC to have murdered her aunt by setting fire on her. This finding was arrived by the HV reversing the acquittal by the trial court. She was sentenced to life imprisonment. The appellant aggrieved, by the conviction order of High Court, assailed the same before the Supreme Court via criminal appeal.
Considering the appeal, the bench of Supreme Court comprising of Justice N.V. Ramana, Justice Mohan M. shantanagoudar and Justice S. Abdul Nazeer observed that the dying declaration can be the sole basis of conviction only when it is “trustworthy, voluntary, blemish less and reliable”.
The Court also observed that it is not mandatory, that the dying declaration should be certified by a doctor always; however, whoever records the declaration should certify that the person was in a fit medical condition to make it.
“In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary” observed the judgement authored by Justice Shantanagoudar.
In the instant case, the dying declaration recorded by Naib Tehsildar-cum-Executive Magistrate on which the prosecution relied failed to inspire confidence of the Court. The Court discarded the dying declaration recorded by the Naib Tehsildar as he had not taken any effort to verify the medical fitness of the deceased so as to ensure that the deceased was in a fit state to recollect the incidence.
“He has also admitted in his cross examination that he did not put any question to the victim to find out whether she was in a position to make a statement or not. He also did not try to verify whether the victim had the power to recollect the incident in question. Hence, it is clear that P.W. 1 (Plaintiff witness no. 1) did not satisfy himself about the fitness of the victim to make a statement. No verification or certification of the doctor regarding the fitness of the victim to make a statement can be found on the dying declaration either”.
Though the prosecution asserted that the dying declaration was recorded by the Tehsildar in the presence of three witnesses, only a photocopy of the dying declaration was produced before the trial court in which the signatures of the witnesses were absent. Moreover, the I.O. (Investigating Officer) as well as the Tehsildar-cum-Executive Magistrate also failed to show any tenable reason as to why the original dying declaration was not produced, noted the court.
“To add to this, there is not even a whisper in the deposition of the Investigating officer about the presence of the Naib Tehsildar-cum-Executive Magistrate (P.W.1) or about him recording the dying declaration at about 12.15 p.m. The investigating officer has spoken neither about the requisition sent by him as per Exhibit P3 nor about the alleged dying declaration Exhibit P2 which is stated to have been recorded by the P.W. 1”.
The Bench further opined that the oral dying declaration made to the relatives of the deceased does not inspire confidence and is a version of afterthought in as much as the same was brought up before the trial court for the first time and the same was not mentioned while the police recorded their statements under section 161 Cr. P.C.
Section 161 in The Code of Criminal Procedure, 1973,
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
The Court held that the High Court has manifestly erred in convicting the appellant, in as much as there is no other material against the appellant. The Court While allowing the appeal and set aside the conviction order of the High Court of Chhattisgarh, restored the order of acquittal by the trial court.
VIJAYASHREE RAMESH, ADVOCATE & SOCIAL ACTIVIST.