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Dying declaration of a victim satisfying all judicial procedural conditions cannot be rejected on th

Purshottam Chopra v. State/Govt. of NCT DelhiCriminal Appeals No. 194-195 of 2012 – 07th January 2020

CORAM: A two-judge bench of the Supreme Court comprising of Justice A.M. Khanwilkar and Justice Dinesh Maheshwari.

The Court held that: “The expectations in the said rules that the dying declaration be recorded by a Judicial Magistrate; the fitness of the declarant be examined; the statement be in the form of simple narrative; signature or thumb impression of the declarant be obtained etc. are all, obviously, intended to ensure that the dying declaration is recorded in the manner that its credence does not remain questionable. However, a particular statement, when being offered as dying declaration and satisfies all the requirements of judicial scrutiny, cannot be discarded merely because it has not been recorded by a Magistrate or that the police officer did not obtain attestation by any person present at the time of the making of the statement.”

The appellants are accused of causing the death of one Sher Singh by putting him on fire. The Trial Court as also the High Court has accepted these statements as being his dying declarations wherein the appellants were named as the assailants. Therefore, the appellants stand convicted essentially on the basis of the dying declarations of the victim. The reliability of such dying declarations has been assailed in these appeals apart from other contentions concerning the surrounding factors.

The issue considered by the Court is on the reliability of dying declaration recorded not in the presence of a Magistrate.

Appellant Contentions:

The appellants contended that the dying declarations which were the sole evidence based on which the Trial Court had held them guilty of the offence was not reliable evidence as it was not recorded in the presence of a magistrate. It was also contended that the vigour and language of the dying declaration are inconsistent with the 100% burns of the victim. The appellants also contended the validity of the dying declaration on the basis of there being no attestations from the witnesses present during the taking of the dying declaration.

Observations of the Court:

The Hon’ble Supreme Court after taking into consideration a plethora of precedents like Paparambaka Rosamma and Ors. v. State of Andhra Pradesh: 1999 CriLJ 4321, Laxman v. State of Maharashtra: (2002) 6 SCC 710 and Koli Chunilal Savji and Anr. v. State of Gujarat: 1999 CriLJ 4582 on the conditions for determining the veracity of the dying declaration and summarized the principles as follows:

i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. iv)When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement vi)Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.

The Court held that the mere reasons that the dying declaration was not recorded in the presence of a magistrate or was not attested by the independent witnesses present during the taking of the dying declaration does not invalidate the veracity of a dying declaration that satisfies all the other essential procedural conditions of dying declaration. The Court refuted all the other contentions of the appellants as unfounded and baseless.

The Hon’ble Court accordingly found the appellants guilty of offences under Section 302/34 of the Indian Penal Code and thereby dismissed the appeal to uphold the judgments of the High Court and the Trial Court.

–  Vignesh Hariharan. R

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