Case Note & Summary
The appeal arose from a conviction recorded by the Additional Sessions Judge, Achalpur in Sessions Trial No. 72/2015, where the appellant-husband was found guilty of murder, cruelty, and intentional insult under Sections 302, 498A, and 504 of the Indian Penal Code, and sentenced to life imprisonment with fines, while his parents and brother were acquitted. The prosecution case was that on 25-02-2015, the appellant, under the influence of liquor, abused and set his wife Kunda ablaze after pouring kerosene on her, resulting in burn injuries that led to her death the next day. The conviction rested primarily on two oral dying declarations made to her brother (P.W. 1) and his wife (P.W. 4), and a written dying declaration (Exhibit 40) recorded by the Investigating Officer in the presence of a doctor. The legal issues centered on the reliability of these dying declarations and whether they could sustain the conviction without corroboration. The appellant argued that the declarations were not recorded before an Executive Magistrate despite the victim surviving for some time, the witnesses were interested, and the declarations were inconsistent and suspicious. Citing Surinder Kumar v. State of Haryana, the appellant urged that suspicious dying declarations cannot form the basis of conviction. The State contended that the trial court correctly relied on the declarations. The Court scrutinised the evidence and, applying the principles from Khushal Rao v. State of Bombay, observed that a dying declaration must be truthful and free from infirmity. The oral declarations of P.W. 1 and P.W. 4 were found unreliable because they were related and, by their own admission, lodged the report on suspicion rather than direct knowledge. Moreover, they omitted allegations against the in-laws that were initially made in the FIR. The written dying declaration (Exhibit 40) was held suspicious because the doctor’s certificate did not confirm fitness to give a statement before or after recording, and the thumb impression on the right hand was inconsistent with medical evidence that the right forearm was completely burned. No explanation was offered for not recording the dying declaration by an Executive Magistrate. The written declaration also contained a detailed narrative implicating the in-laws, which was not mentioned in the oral declarations. The Court concluded that the dying declarations were inconsistent, uncorroborated, and riddled with infirmities, thus failing the test of reliability. Consequently, the appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted of all charges.
Headnote
A) Criminal Law – Dying Declaration – Evidentiary Value – Indian Evidence Act, 1872, Section 32 – The court reiterated that a conviction can be based on a dying declaration alone if it is truthful and inspires confidence; however, if it suffers from infirmities, corroboration is required – Held, reliance placed on Khushal Rao v. State of Bombay, AIR 1958 SC 22, that a dying declaration must be subjected to very close scrutiny (Paras 5-6). B) Criminal Law – Oral Dying Declaration – Interested Witnesses – The court found that the oral dying declarations made to P.W. 1 (brother) and P.W. 4 (sister-in-law) were not reliable because they were related and their testimony was based on suspicion, as admitted by P.W. 4, and did not consistently implicate the in-laws as initially alleged – Held, the oral declarations lacked credibility and corroboration (Paras 7-10). C) Criminal Law – Written Dying Declaration – Recording by Police Officer – When the victim survived for a period (admitted on 25-02-2015, died on 26-02-2015), no effort was made by the Investigating Officer to record the dying declaration before an Executive Magistrate, casting doubt on its genuineness; doctor’s certificate did not clearly state that the victim was fit to give statement before or after recording – Held, the written dying declaration (Exh. 40) was suspicious and not free from doubt (Paras 11-12). D) Criminal Law – Dying Declaration – Physical Feasibility of Thumb Impression – Evidence showed that the victim’s right forearm was completely burnt, yet the written dying declaration bore a right thumb impression; this inconsistency rendered the document unreliable – Held, the thumb impression was not feasible and further tainted the dying declaration (Paras 13). E) Criminal Law – Inconsistency in Dying Declarations – The oral dying declarations omitted allegation against in-laws who were also named in the FIR, and the written dying declaration implicated them at instigation; this discrepancy, along with contradictions, made the dying declarations unworthy of reliance – Held, the conviction could not be sustained on such inconsistent declarations (Paras 14).
Issue of Consideration
Whether the conviction under Sections 302, 498A, 504 IPC can be sustained based solely on oral and written dying declarations which are inconsistent, uncorroborated, and recorded under suspicious circumstances?
Final Decision
Appeal allowed; conviction and sentence set aside; appellant acquitted.
Law Points
- dying declaration must be truthful and inspire confidence of court
- necessity for corroboration arises if dying declaration is infirm
- suspicious dying declarations cannot be acted upon without corroboration
- oral dying declarations of interested witnesses need corroboration
- written dying declaration recorded by police without Executive Magistrate and with suspicious thumb impression not reliable
