Parbin Ali and Another vs. State of Assam, Criminal Appeal No. 1037 of 2008, Decided on 7th
January, 2013
Prosecution
relied on oral dying declaration. The Hon’ble Supreme Court on the fact of the
case held:
“The final opinion of the
doctor is that the death was caused due to shock and haemorrhage as a result of
the ante mortem injuries in the abdomen caused by sharp weapon and homicidal in
nature. The said opinion was not challenged either before the trial Judge or
before the High Court. We may fruitfully note here that the said witness has
not been at all cross-examined. Whether such a person receiving certain
injuries would be in a position to speak or not has not been brought out any
where in the evidence”.
“…this Court had laid down
that when it is not borne out from the evidence of the doctor that the injuries
were so grave and the condition of the patient was so critical that it was
unlikely that he could make any dying declaration, there was no justification
or warrant to discard the credibility of such a dying declaration”.[Para
17]
The Court also
noted the following case laws:
Khushal Rao v. State of Bombay AIR 1958 SC 22, Kusa v. State of
Orissa AIR 1980 SC 559 and in Meesala Ramakrishan v. State of A.P. (1994) 4 SCC
182, it has been held that the law is well settled that the conviction can be
founded solely on the basis of dying declaration if the same inspires full
confidence
Ranjit Singh v. State of Punjab 4 (2006) 13 SCC 130, it has been
held that the conviction can be recorded on the basis of dying declaration
alone, if the same is wholly reliable, but in the event there exists any suspicion
as regards the correctness or otherwise of the said dying declaration, the
courts, in arriving at the judgment of conviction, shall look for some
corroborating evidence.
Nanhau Ram v. State of M.P. 1988 Supp SCC 152 wherein it has been
stated that normally, the court, in order to satisfy whether the deceased was
in a fit mental condition to make the dying declaration, looks up to the
medical opinion. But where the eye witness said that the deceased was in a fit
and conscious state to make the dying declaration, the medical opinion cannot
prevail.
Laxman v. State of Maharashtra (2002) 6 SCC 710, has laid down
“3. 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 the deathbed 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 cross-examination are dispensed with.
Since the accused has no power of cross-examination, the courts 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 always
to 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 looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and conscious state to make
the declaration, the medical opinion will not prevail, nor can it be said that
since there is no certification of the doctor as to the fitness of the mind of
the declarant, the dying declaration is not acceptable. A dying declaration can
be oral or in writing and any adequate method of communication whether by words
or by signs or otherwise will suffice provided the indication is positive and
definite.”
Puran Chand v.
State of Haryana (2010) 6 SCC 566
wherein it has been stated that a mechanical approach in relying upon a dying
declaration just because it is there is extremely dangerous and it is the duty
of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the
dying declaration is voluntary, truthful, made in a conscious state of mind and
without being influenced by the relatives present or by the investigating agency
who may be interested in the success of investigation or which may be negligent
while recording the dying declaration. The Court further opined that the law is
now well settled that a dying declaration which has been found to be voluntary
and truthful and which is free from any doubts can be the sole basis for
convicting the accused.
Prakash and
another v. State of Madhya Pradesh (1992) 4 SCC 225 wherein it has been held as
follows: -
“In the ordinary course, the members of the family including the
father were expected to ask the victim the names of the assailants at the first
opportunity and if the victim was in a position to communicate, it is
reasonably expected that he would give the names of the assailants if he had
recognised the assailants. In the instance case there is no occasion to hold
that the deceased was not in a position to identify the assailants because it
is nobody's case that the deceased did not know the accused persons. It is
therefore quite likely that on being asked the deceased would name the
assailants. In the facts and circumstances of the case the High Court has
accepted the dying declaration and we do not think that such a finding is
perverse and requires to be interfered with.”
To see full text
follow the link: