Case Note & Summary
This criminal appeal was filed before the Bombay High Court, Nagpur Bench, challenging the judgment and order dated 23.2.2004 passed by the Sessions Judge, Wardha, in Sessions Trial 70 of 2000, convicting the appellant for an offence punishable under Section 304 Part I of the Indian Penal Code and sentencing him to rigorous imprisonment for ten years and a fine of Rs. 2000. The prosecution case was that on the night of 8.2.2000, the deceased Bharat Thool was returning home from a theater when the accused met him near a bridge, abused him for not allowing him to sit in the theater, and suddenly assaulted him with a knife, causing injuries on the right hand thumb, lower abdomen, and waist. The injured Bharat managed to reach home and narrated the incident to his mother Bakubai (PW3) and brother Pramod (PW4). Accompanied by them, he went to Hinganghat Police Station and lodged an oral report, which was reduced to writing and bore his signature. Bharat was examined at Cottage Hospital, Hinganghat, and then referred to Kasturba Gandhi Medical College and Hospital, Sevagram, where he underwent treatment but died on 10.2.2000 at 11:50 p.m. Consequently, Section 302 of the IPC was added to the FIR. The prosecution relied primarily on the oral dying declarations made to the mother and brother, the oral report given by the deceased, and a dying declaration recorded by the Executive Magistrate. The Sessions Judge discarded the dying declaration recorded by the Executive Magistrate but accepted the oral dying declarations and the oral report, convicting the accused under Section 304 Part I IPC. The appellant argued that the oral dying declarations and the report were unreliable because the deceased was not in a condition to make statements and there was no corroborative evidence. The prosecution submitted that the deceased was conscious and oriented, the declarations were credible, and the oral report was lodged promptly without any reason for false implication. The High Court found that the oral dying declarations and the oral report were admissible under Section 32(1) of the Indian Evidence Act as they related to the cause of death. The court applied the principle that a dying declaration can be the sole basis for conviction if found credible and made in a fit mental condition, emphasizing the maxim 'Nemo moriturus praesumitur mentire'. The court noted that the oral report was lodged with promptitude, there was no suggestion of previous enmity, and the testimony of PW4 and PW5 was consistent and unchallenged in material aspects. The Executive Magistrate's dying declaration was discarded for lack of fitness certification and procedural lapses. Ultimately, the court held that the prosecution had proved beyond reasonable doubt that the accused caused the injuries that resulted in death, and the offence fell under Section 304 Part I IPC as the act was done with intent to cause bodily injury likely to cause death. The appeal was dismissed, and the conviction and sentence were confirmed.
Headnote
A) Criminal Law - Evidence - Dying Declaration - Indian Evidence Act, 1872, Section 32(1) - Oral dying declarations to mother and brother and the oral report lodged by the deceased are admissible as substantive evidence. The maxim 'Nemo moriturus praesumitur mentire' gives sanctity to such declarations, and conviction can rest solely on a credible dying declaration. (Paras 10-11) B) Criminal Law - Evaluation of Evidence - Reliability of Dying Declaration - Indian Evidence Act, 1872, Section 32(1) - The court must be satisfied that the deceased was in a conscious and fit mental condition to make the statement. The oral report Exh. 29 was lodged promptly, and the possibility of false implication was remote, thus the dying declarations were found reliable. (Paras 7-10) C) Criminal Law - Offences - Culpable Homicide Not Amounting to Murder - Indian Penal Code, 1860, Section 304 Part I - The assault with a knife causing death, based on credible dying declarations, proved the accused's intent to cause bodily injury likely to cause death, satisfying ingredients of Section 304 Part I IPC. (Paras 10-11) D) Criminal Law - Evidence - Dying Declaration Recorded by Executive Magistrate - Indian Evidence Act, 1872, Section 32(1) - The dying declaration recorded by Executive Magistrate (Exh. 36) was discarded because no attempt was made to ascertain fitness of the patient, no time of completion recorded, and the doctor's certificate was not obtained, making it unreliable. (Para 6)
Issue of Consideration
Whether the prosecution has proved beyond reasonable doubt that the accused assaulted the deceased based on dying declarations and oral report Exh. 29, and what offence is committed.
Final Decision
The appeal is dismissed. The conviction and sentence under Section 304 Part I IPC are confirmed.
Law Points
- Dying declaration under Section 32(1) of the Indian Evidence Act is an exception to hearsay rule
- Conviction can rest on dying declaration alone if it passes careful scrutiny
- 'Nemo moriturus praesumitur mentire' - a person on verge of death is presumed to speak truth
- Oral dying declaration to relatives and the oral report by deceased are admissible as substantive evidence under Section 32(1) Evidence Act
