No death after giving dying decleration
suhani
(Querist) 16 October 2013
This query is : Resolved
Respected sir, which are the relevant sections relating to. This very concept-
When the victim gives dying decleration and the accused is prosecuted for attempt to murder , later the victim does not die.. So what argument should b taken up by defence? Can u please suggest some relevant sections and case laws
Raj Kumar Makkad
(Expert) 16 October 2013
The prosecution has to prove the allegations beyond any reasonable doubt, Defence has only to rebut so there is no special argument in the given case except denying the allegations especially when the victim is living safe.
suhani
(Querist) 16 October 2013
What about section 32(1) of indian evidence act.. Does the fact is considered relevant when dying decleration is given and victim dies or it is always considered relevant and has no connection with death?... Can the defence argument be backd up by this that victim did not die so the essentials of section 32(1) of IEA are not fulfilld.. Therefore the proposed allegation by prosecution does not stand strong
prabhakar singh
(Expert) 16 October 2013
. Dying declaration becomes unreliable if it is not as per prosecution version(State of UP v. Madan Mohan. AIR 1989 SC
1519:1989 Cri LJ 1485h) .
This has been summed up the Supreme Court:
1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross examination
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
5. Dying declaration may be in the form of
questions and answers and answers being
written in the words of the person making the declaration. But court cannot be too technical.
Take care of the POINT NO 1.
So all depends on how you prepared your CROSS EXAMINATION Of A VICTIM WHO SURVIVED HIS DEATH AFTER DYING DECLARATION ?
CLEAR OR NOT?
DO NOT POST QUALIFYING QUERIES> A MANDATORY REQUEST!
R.K Nanda
(Expert) 16 October 2013
for citations search indiankanoon.com
P. Venu
(Expert) 17 October 2013
It is no longer the dying declaration if the victim has not died! Cross-examine the declarant and prove the truth. Facts are more important than citations.
Ms.Nirmala P.Rao
(Expert) 17 October 2013
If there is absolutely no evidence whether direct or circumstantial etc in your case and the prosecution fails to prove her case beyond reasonable doubt etc or not amounting to culpable homicide etc under section 304 IPC etc you'd be acquitted.
Guest
(Expert) 17 October 2013
Hi Suhani,
You are an intern, hope you must have discussed the point also with your seniors in the organisation. But you have not mentioned what is his/their opinion on the issue and on what specific point you have any doubt.
However, any proposed dying declaration does not remain a dying declaration if the subject does not die after that statement. That can be treated merely as a statement of the victim, like statements of other witnesses, leading to to cross-examination of the victim, as a prosecution witness, by the defence.
However, if the police insists that to be treated as a dying declaration, you can simply raise quetion on the deadbody and the evidence of victim's death. Failing which, the defence may insist on treating the declaration as invalid in the absence of death.
Rajendra K Goyal
(Expert) 23 October 2013
Well advised by the expert PS Dhingra ji, nothing more to add.
