The Allahabad High Court was hearing the petition titled Prem Nath Yadava & Anr. Vs. State of UP; Criminal Appeal No. 1114 of 2015 related to the dying declaration before a police officer. The Bench of Justices Ramesh Sinha and Justice Vikas Budhwar remarked that even if there are some defects in the investigation, the accused can’t be held not guilty if there is a documentary and ocular evidence to suggest that the accused committed the murder. Further, the Allahabad High Court upheld the life sentence given to a person convicted for murder after observing that there is no prohibition on a policeman recording a dying declaration and ruled that such a dying declaration is admissible evidence as well.
Dying declaration gets its root from Section 32 (1) of the Evidence Act, 1872. As per Section 32 (1) of the Evidence Act 1872, whenever the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death, such statements are relevant whether the person, who made them was or was not, at the time when they were made, under expectation of death.
In this case, the complainant alleged that when he and his brother were going to fields on 15.02.2002 at 7 AM, the accused approached them and after abusing fired at them with a pistol. Even though the complainant was not hurt, his brother was shot and passed away later. Before passing, the police recorded the dying declaration of the deceased who named the accused. As the victim died so section 302 of the IPC was also added and during the course of the investigation however, Section 3(1) of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 was also put to motion. S.I. Indra Prakash Singh was handed over the investigation. During the course of investigation, he recorded the statement of the witness, prepared the site plans and also recorded the statement of the deceased and also got recorded the victim’s dying declaration. The trial court convicted the accused u/s 302/34, 506, 504 of IPC and u/s 3(1) of UP Gangster Act and sentenced him to life imprisonment. The accused challenged the trial court judgment in the High Court on the ground that the dying declaration as recorded by police cannot be relied on and also that the fitness certificate was not obtained from the doctor.
DD before SI: The Hon’ble Apex court in the case of Paras Yadav and Others Vs. State of Bihar reported in 1999 2 SCC 126 had the occasion to consider the contingency, wherein the statement so recorded by the Sub-Inspector, has been treated as valid dying declaration.
Basis for discouraging dying declaration before a police officer: A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer later on relied on as dying declaration.
DD before IO in presence of friends and relation: In Munnu Raja and Anr. Vs. The State of Madhya Pradesh – AIR 1976 SC 2199, this Court observed – investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged. The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained.
Better and more reliable methods of recording DD not available: In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.”
Safeguards for dying declaration: Yet in another decision in the case of Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 the Hon’ble Apex Court in paragraph nos. 3 and 5, has observed as under:-
The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth.
The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Since the accused has no power of crossexamination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion.
No fixed format: The law regarding the same is well-settled by this Court in the decision of Laxman v. State of Maharashtra, AIR 2002 SC 2973, wherein this Court observed thus:
“3. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”
Certificate of doctor and thumb impression was burnt: In the case of Kaliya Vs. Madhya Pradesh reported in 2013 10 SCC 758 the Hon’ble Apex Court in paragraph no. 10, has observed as under:-
“Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.”
The Allahabad High Court upheld the life sentence given to a person convicted for murder after observing that there is no prohibition on a policeman recording a dying declaration and ruled that such a dying declaration is admissible evidence as well. The court was of the opinion that the finding and the conclusion recorded by the trial court are based on correct appreciation of evidence and do not suffer from error. The Allahabad High Court upheld the life sentence of a convict in a murder case that dates back to the year 2002 while stressing that there is no prohibition that the police personnel should not record dying declaration and that such a dying declaration is also admissible in evidence. The Bench of Justice Ramesh Sinha and Justice Vikas Budhwar further noted that there might be certain defects in the investigation so conducted by the Investigating Officer, but the same cannot ipso facto be a ground to hold that the appellants are not guilty, as there exists ocular and documentary evidence, which proves that the appellants have committed the murder of the deceased. To put it differently, so it can be safely inferred that dying declaration recorded by a police officer is admissible in evidence if it inspires confidence.
HON’BLE MR JUSTICE RAMESH SINHA
Judge Lucknow Bench, Allahabad High Court
