Evidence – Dying declaration – When cannot be relied upon – Penal Code, 1860 – s.302 – FIR u/ss.323, 324, 506 r/w 34, IPC was registered on the basis of injured victim’s statement (Exh.P 34) – Victim died, s.302 was added to the case – Appellant along with co-accused persons was arrested – Trial court acquitted the co-accused persons however, the appellant was convicted u/s.302 – Conviction affirmed by High Court – Interference with:
Held: 1.1 Prosecution could neither prove the faithful recording of the statement/dying declaration nor they could prove it to be an unimpeachable document – Such a doubtful piece of evidence cannot be made the foundation of conviction of the appellant. [Para 64]
1.2 There are material infirmities in the case of prosecution – It was categorically stated by PW-1 (brother of the deceased) and corroborated by the Doctors (PW-9 and PW-10) who treated the deceased, that the deceased remained unconscious almost fully from the time of the assault on until his death, and was never in a condition to speak – Hence the fitness certificate becomes doubtful. [Paras 63]
1.3 Prosecution failed to identify or examine the doctor who had issued the fitness certificate, which creates grave doubt about the authenticity of the fitness certificate – Furthermore, non-examination of the said doctor, deprived the defence an opportunity to discredit the fitness certificate. [Paras 63]
1.4 No contemporaneous medical record relating to the treatment of the deceased at the hospital was produced nor proved during trial, leaving the Court without corroborative material to assess the fitness of the injured to make a statement. [Para 63]
1.5 The statement/dying declaration itself suffers from serious infirmities as it bears no time of recording, and the recording officer, SI (PW-17), failed to record his own satisfaction that the injured was fit to make such statement. [Para 63]
1.6 Even the prosecution and trial Court did not fully accept the version set out in the statement/dying declaration, inasmuch as one of the named assailants, was not charge sheeted, and another, (accused No. 3), was acquitted by the trial Court. [Para 63]
1.7 PW-1, who was present with the deceased at the time of the incident, categorically deposed that the accused present in Court had not caused any injuries to the deceased and further stated that the assailants could not be identified due to darkness, thereby significantly contradicting the version set out in the statement/dying declaration. [Para 63]
1.8 Prosecution miserably failed to establish the complicity of the appellant for the commission of the crime – There are serious lapses surrounding the recording of the statement/dying declaration coupled with the material contradictions between its contents and the ocular testimony as well as the inconsequential recovery of the knife (purportedly used for causing injuries to the deceased) which is discredited for want of scientific corroboration – Impugned judgments set aside – Appellant acquitted. [Para 66] Judicial Deprecation – Adjudication of criminal appeal – Constitution of India – Art.21 – Right to fair trial – In the present case, High Court proceeded to take up the main appeal itself for hearing on merits when the matter was listed only for consideration of an application regarding renewal of the registration certificate of the Alto car seized during investigation – Since the counsel engaged by the appellantaccused was not available, the Court appointed an amicus curiae and, without granting a reasonable opportunity to prepare the matter, it heard the appeal on merits and reserved judgment on the very same day:
Held: Approach adopted by the High Court is short of standards of fairness and is particularly more disturbing and unjustified as the accused was sentenced to life imprisonment – Deprecated – The hearing in a criminal trial or appeal must be an effective hearing – This necessarily presupposes not only the presence of counsel but also the grant of adequate time and opportunity for such counsel, whether engaged by the accused or appointed as an amicus curiae, to properly prepare and present the case – To appoint an amicus and proceed to hear the matter on the very same day, without affording sufficient time for preparation or consultation, renders the safeguard of effective legal representation to an empty formality and undermines the very essence of the right to fair trial enshrined under Art.21 – Word of caution to Courts – In criminal trials and appeals, especially those involving punishment of life imprisonment or capital sentence, the concerned Courts must not treat the appointment of an amicus curiae as an empty formality – Such counsel must be afforded sufficient time to peruse the record, meet the accused, and prepare the defence effectively – The principles of fair trial and effective representation are not procedural gimmicks but foundational guarantees of criminal justice system, which cannot be compromised or breached. [Paras 33, 38, 39]
Evidence – Recovery – Of knife – No scientific corroboration – Evidentiary value – Conviction of the appellant u/s.302, IPC – Apart from the statement/dying declaration (Exh. P-34), Trial Court and the High Court also relied on the recovery of the knife made in furtherance of the disclosure statement (Exh. P-24) of the accused-appellant:
Held: The evidentiary value of this recovery is undermined by the fact that the FSL report (Exh. P-1) did not indicate any blood group on the said weapon, nor was any serological report produced to establish that the blood allegedly found on the knife matched with that of the deceased – In the absence of such scientific corroboration linking the recovered knife with the deceased, the recovery remains inconsequential – Otherwise also mere recovery of a weapon, even if stained by the same blood group as that of the deceased cannot by itself establish the guilt of an accused, particularly where the prosecution’s primary evidence, namely the statement/dying declaration (Exh. P-34) suffers from serious infirmities. [Para 65]
Evidence of hostile witness – Admissibility/reliability – Principles governing, discussed. [Paras 45-48]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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