Evidence – Two dying declarations – In first dying declaration recorded by DW-1, deceased exonerated appellant and his family – However, in the second dying declaration recorded by PW-6, deceased implicated appellant and his parents – Trial Court convicted appellant u/s. 304-B of the IPC and sentenced him to 10 years rigorous imprisonment – High Court reduced the sentence from 10 years to 7 years – On appeal, held: In the first dying declaration, PW1-doctor had examined deceased whether she was in fit state of mind and conscious to make statement – After certification, DW-1 also satisfied herself as to whether deceased was voluntary making statement or not – However, the second dying declaration was recorded without there being examination by a doctor with regard to the fitness of the deceased – Further, PW6 herself admitted that PW13 (father of deceased) and PW11 (sister of deceased) were present in the hospital – The possibility of the second dying declaration being given after tutoring by her relatives cannot therefore be ruled out – DW-2(DSP) had stated in his deposition that the statement was made by the deceased after being tutored by her relatives – Also, prosecution had not examined DW1 and DW2 – Therefore, in the facts and circumstances of the case, the first dying declaration considered more reliable and trustworthy than the second dying declaration – Accordingly, appellant acquitted of all the charges.
Allowing the appeal, the Court
HELD: 1. The first dying declaration (Ex. DO/C) is recorded by DW-1. A perusal of the said would reveal that prior to recording the statement of deceased, PW-1 had examined as to whether she was in a fit state of mind and conscious to make the statement. After certification, DW-1 got herself satisfied as to whether deceased was voluntarily making the statement or not and thereafter, recorded her statement. The said dying declaration (Ex. DO/C) is also endorsed by PW-1 with the remarks that deceased was conscious throughout while making statement. DW-1 has also deposed that even after making the statement, she confirmed from the deceased as to whether the statement was voluntarily made by her. [Para 16][365-A-C]
2. As against this, as far as the second dying declaration (Ex. PE) which was recorded by another Judicial Magistrate PW-6 after 3 days is concerned, it was recorded without there being examination by a doctor with regard to the fitness of the deceased to make the statement. Though the statement is recorded in Hospital and though doctors were available, PW-6 did not find it necessary to get the medical condition of the deceased examined from the doctors available in the hospital. It is further to be noted that PW-6 herself has admitted that PW-13) and PW-11, father and sister of deceased were present in the hospital. The possibility of the second dying declaration (Ex. PE) being given after tutoring by her relatives cannot therefore be ruled out. [Para 17][365-DE]
3. It is also relevant to note that the prosecution had not examined DW-1 and DSP (DW-2). It therefore creates a serious doubt with regard to fairness and impartiality of the IO. Apart from that, it is to be noted that on the basis of very same evidence, the trial court, by giving benefit of doubt, has acquitted the father and mother of the appellant. In that view of the matter, conviction of the appellant on the very same evidence, was improper. [Para 19][365-H; 366-A]
4. Therefore, this Court finds that in the facts and circumstances of the present case, the first dying declaration (Ex. DO/C) will have to be considered to be more reliable and trustworthy as against the second one (Ex. PE). In any case, the benefit of doubt which has been given to the other accused by the trial court, ought to have been equally given to the present appellant when the evidence was totally identical against all the three accused. [Para 20][366-B-C]
Harjit Kaur v. State of Punjab (1999) 6 SCC 545 : 1999
(5) JT 317; Sayarabano v. State of Maharashtra (2007)
12 SCC 562 : [2007] 2 SCR 354; Sher Singh v. State of Punjab (2008) 4 SCC 265 : [2008] 2 SCR 959;
Munnawar v. State of U.P. (2010) 5 SCC 451; Lakhan v. State of M.P. (2010) 8 SCC 514 : [2010] 9 SCR 705; Shudhakar v. State of M.P. (2012) 7 SCC 569 : [2012]
7 SCR 128; Raju Devade v. State of Maharashtra (2016) 11 SCC 673 : [2016] 3 SCR 818; Kashmira Devi v. State of Uttarakhand (2020) 11 SCC 343 : [2020] 1 SCR 152; State of U.P. v. Veerpal (2022) 4 SCC 741 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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