If there is conflicts between dying declaration pointing to the innocence of the accused by the deceased and circumstancial evidence pointing to the guilt of the accused, which will prevail.
N.K.Assumi (Advocate) 10 April 2011
If there is conflicts between dying declaration pointing to the innocence of the accused by the deceased and circumstancial evidence pointing to the guilt of the accused, which will prevail.
Tajobsindia (Senior Partner ) 10 April 2011
@ Ld. Sh. Assumi
Your have raised time tested question on appreciation of evidences in crl. trial especially U/s 32 IEA, 1872 quite naturally and allow me to submit my views by opening statement before forum jury that “the accused shall be set free” !
Reasoning:
A. The
The Hon’ble Apex Court in P.Mani vs. State of T.N. reported in (2006) 3 SCC 161 has held as follows :
Section 32 of the Evidence Act, 1872 – Dying Declaration – Must be wholly reliable – In case of suspicion, the Court should seek corroboration – If evidence shows that statement of deceased is not wholly true it can be treated only as a piece of evidence but conviction cannot be based solely upon it.
It is further held in the very same decision that,
“Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, if may be considered only as piece of evidence in which event conviction may not be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them.”
A leading and landmark decision rendered by a five-Judge Bench of the Hon’ble Apex Court in respect of Dying Declaration is Laxman V. State of Maharashtra (2002 SCC (Cri.) 1491) in which the Hon'ble Apex Court has held as follows :
“3. … 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. …. 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.
4. …..
5. …. It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. ….”
In a decision in
“S.32(1) of the Evidence Act, 1872 – Dying Declaration – Evidentiary value – Multiple dying declarations – Inconsistencies – Discrepancies in the last dying declaration making it doubtful – Held, it would not be safe to convict the appellant – Penal Code, 1860, Ss.302 and 34.
Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
On facts, it would be unsafe to convict the appellant. The discrepancies make the last declaration doubtful. The nature of the inconsistencies is such that they are certainly material. The High Court had itself observed that the dying declaration (Ex.t.P-11) scribed by the Executive Magistrate (PW 9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Ext.P-3) scribed by ASI, B (PW 8) insofar as different motives have been described. That is not only variation. There are several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set fire on her.”
Section 32 – Dying Declaration – Recorded in translated version – Reliability – Declaration made by deceased in Telugu – translated by the duty doctor in Tamil and recorded by the Magistrate in Tamil – Statement so recorded was read over and explained by doctor to deceased – Deceased admitted it to be correct – As regards translation none was cross examined – No material to show that it was a result of tutoring – Declaration corroborated by evidence of sister-in-law of deceased – is trustworthy and credible – Ravi Kumar alias Kutti Ravi vs. State of Tamil Nadu - 2006 AIR SCW 1037.
Section 32 – Dying Declaration – Contradiction with accident register – Declaration stating that accused put deceased on fire – Case of suicide, however, recorded in accident register – Doctor who made entry, however, explained that entry was so made on presumption since cause of injuries was not informed to him at that time – Evidence of doctor clear and unambiguous – Defence case of suicide cannot be accepted on face of two dying declarations recorded by Magistrate and Police Constable and their clear evidence – Ravi Kumar alias Kutti ravi vs. State of tamil Nadu - 2006 AIR SCW 1037.
Section 32 – Dying Declaration – Deceased was assaulted by accused with sword, axe etc. – Presence or non presence of eye-witness or non-mentioning of name of said eye-witness in dying declaration – Has no connection with ascertainment of veracity and creditworthiness of dying declaration – Thus disbelieving dying declaration of deceased recorded by doctor on ground that deceased did not mention presence of eye-witness in dying declaration – Not proper – Heeralal Yadav vs. State of M.P. - 2006 AIR SCW 3425.
Section 32 – Dying declaration – Recording of – Only because a dying declaration was not recorded by a Magistrate – Same by itself may not be a ground to disbelieve entire prosecution case –Balbir Singh vs. State of Punjab - 2006 AIR SCW 4950 (A).
Section 32 – Dying declaration – Reliability – possibility of deceased becoming instantaneously unconscious – Expressed by doctor conducting post mortem – No ground to disbelieve dying declaration – There is a difference between something possible and something possible or certain – More so, when dying declaration was recorded before deceased reached hospital – Gangaram Shantaram Salunkhe vs. State of Maharashtra - 2006 AIR SCW 5918 (A).
Section 32 – Multiple dying declarations – Reliability – Accused was named in all dying declarations as per who poured kerosene on deceased and set him on fire – Dying Declarations though more than one not contradictory to and inconsistent with each other – Evidence of witnesses corroborating dying declarations – reliance can be placed on such dying declarations – Vimal vs. State of Maharashtra - 2006 AIR SCW 5953.
Section 32 – Dying Declaration – Conviction can indisputably be based on a dying declaration but before it cannot be acted upon, the same held to have been rendered voluntarily and truthfully – Consistency in the dying declaration is the relevant factor for placing full reliance thereupon – Mehiboobsab Abbasafi Nadaf vs. State of Karnataka – 2007 (5) Supreme 713.
The
“16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record.”
The Hon'ble Apex Court in Kalawati W/o, Devaji Dhote vs. State of Maharashtra 2009(1) Supreme 800 has held that, in respect of the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben vs. State of
i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja and another vs. The State of
ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of
iii. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased has an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [ K. Ramachandra Reddy and another vs. The Public Prosecutor (AIR 1976 SC 1994)].
iv. Where the dying declarati0on is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg vs. State of
v. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [ Kala Singh vs. State of
vi. A dying declaration which suffers from infirmity cannot form the basis of conviction. [ Ram Manorath and others vs. State of
vii. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [State of
viii. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Srajdeo Oza and Others vs. State of
ix. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declatation 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. [ Nanahau Ram and another vs. State of
x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of
xi. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted [ Mohanlal Gangaram Gehani vs. State of Maharashtra (AIR 1982 SC 839) and Mohan Lal and others vs. State of Haryana (2007) (9) SCC 151)].
B. Samadhan Dhudaka Koli vs. State of Maharashtra 2008 (8) Supreme 719 – when a contradictory and inconsistent stand is taken by deceased in different dying declarations they should not be accepted on their face value.
Evidence – Appreciation of – Prosecution can solely based on the circumstantial evidence – Principles of appreciation of circumstances from which the conclusion of guilt can be drawn.
In Sarbir Singh vs. State of
"It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In Countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why the Courts have insisted
I. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established;
II. All the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved;
III. The circumstances should be of a conclusive nature;
IV. The chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.
In Padala Veera Reddy v. State of
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
The
"10. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. V. State of
“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
The
C. Appreciation of – Not to cull out one circumstance from rest:-
Circumstantial evidence – Appreciation of – Court should not cull out one circumstance from the rest to give a different meaning to it – Gade Lakshmi Mangraju alias Ramesh vs. State of
D. Hypothesis of the guilt:-
Circumstantial Evidence – Appreciation of – Circumstances must be consistent with the hypothesis of the guilt of the accused and totally inconsistent with his innocence – Circumstances from which the conclusion of guilt is to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime. Court should not get swayed by emotional considerations - Balwinder Singh vs. State of
E. Conditions for reliance:-
Conditions for reliance – Tests to be satisfied before convicting an accused on the basis of circumstantial evidence.
The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence – Gambhir vs. State of
Missing link to connect the accused – Non explanation of the accused as to what happened on the fateful night – section 313 statement – Chain of circumstances completed – Witness may lie, Circumstances will not – Joseph vs. State of Kerala – (2000) SCC (Cri) 926.
Circumstantial Evidence – Evidence must be compete and incapable of explanation on any other hypothesis except that of the guilt of the accused – Reddy Sampath Kumar vs. State of A.P. – (2005) 7 SCC 603.
Circumstantial Evidence –Last seen theory itself sufficient to connect the accused in the absence of any other links in the chain of circumstantial evidence – Jaswant Gir vs. State of Punjab – (2005) 12 SCC 438.
Circumstantial Evidence – Bride burning – All the circumstances must conclusively established – If there is any break in the link of chain, accused entitled for the benefit of doubt – Sarojini vs. State of M.P. – 1993 Supp (4) SCC 632.
Further:
F. The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
“The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.”
In yet another decision in State of U.P. V. Ram Veer Singh and Another reported in 2007 (6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
Hope above helps ?
N.K.Assumi (Advocate) 10 April 2011
Dear Tajobsindia, that is simply supreb on the subjects. Consider this case. Wife with 4 children was brought to the hospital with 98% to 100% burnt injuries writhing in agony, and in this state she was asked whether she quarreled with her husband to which she says yes noding her head, the next question was whether her husband burnt her with kerosine oil to which she says no noding her head left and right, and this is recorded in video recorded in the hospital itself, but the circumstances clearly point out the guilt of the accused. Should the accused be acquitted because of the declaration made by her by nodding her head only as a sign of answer to the question? Do you think she was trying to save her devilish husband for the sake of her children? Dont you think that in such burnt injuries with 98% to 100% brain, liver and kidney can be cooked by the heat of the fire temperature which can be 1200C to 1500C. How far is her sign statements reliable? Once again thanks for the classic citation on the subjects.
Arup (UNEMPLOYED) 10 April 2011
" declaration made by her by nodding her head only as a sign of answer to the question?"
--- actually the dying declaration is fade and not a statement or declaration.
if the circumstantial evidence are strong enough then it should get priority above this fade dying declaration.
so far i remember it is a sc case and sc told that it is not always a compulsion to accept the dying declaration
Tajobsindia (Senior Partner ) 11 April 2011
@ Ld. Sh. Assumi
I don’t wish to argue with you other than giving you the three basics by way of such elaborate re. to core citations on subject matter in such situations. I had intuition that your main que. was concerning a married women but did not felt to ask in the first instance !
I have a feeling you can make a choice to cross the bridge when the time comes to get acquittal OR conviction of the accused husband / father accordingly. Make a wise decision then.
However it was a pleasure interacting with you.
N.K.Assumi (Advocate) 11 April 2011
Thank you very much indeed Tajobsindia and Arup sirs, it is our profession and this time I am the prosecutor and I will prosecute to the best of my ability to do justice to the case but I will certainly not persecute. As for acquital or convictions I will leave it to the court. Thank you for sharing with me the rich experience that you have.
Chetan Pardakhe (Advocate & Corporate Consultant) 11 April 2011
Lots of Thanks Sir
All the citations are very helpful to me
Thaknks Agaon
Deekshitulu.V.S.R (B.Sc, B.L) 06 June 2020
Dying declaration has got an evidentiary value, while circumstancial evidence has no such value. The latter is to be proved by establishing every link towards the guilot of the accused. True as stated by our experts there isno law which says that conviction cannot be based solely on the dying declaration. the above judgments are also helpfull to me. thanks for the contribution.
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