Criminal Appeal No. 470 Of 2015
Kamal Khudal Vs State of Assam
DATE OF JUDGEMENT:
July 14, 2022.
Justice A.M. Khanwilkar
Justice J.B. Pardiwala
Appellant –Kamal Khudal
Respondent – State of Assam
- The petitioner had filed the appeal by special leave, against the Judgement and Order passed by the Trial Court and High Court with reference to the conviction under section 302 of the Indian Penal Code.
- Herein, the validity of the dying declaration had been discussed and the necessity of a reliable evidence in admission for the same.
- Whether the dismissal of the appeal by High Court is valid?
- Does the dying declaration itself amount to substantive evidence?
- SECTION 302 OF INDIAN PENAL CODE 1860: This section deals with the punishment for the offence of murder that is a death or imprisonment for life, along with fine.
- SECTION 34 OF INDIAN PENAL CODE 1860: This section deals with the principle of constructive liability. Here the common intention of the accused persons is the essence of the offence, each of the person is liable as if it is done by that person alone.
ARGUMENTS ADVANCED BY THE APPELLANT
- The counsel for the appellant submitted that the both the courts the Trial Court and the High Court have placed their hands on such non reliable legal evidence and have passed the judgement convicting the accused.
- The counsel further argued that merely based upon a oral dying declaration made by the deceased shall not form a substantive evidence.
- He further insisted that there had to be corroborative evidence to be taken into consideration by the courts in considering the conviction of the accused.
- The counsel further submitted that the case has been purely determined on the basis of circumstantial evidence, rather for the same to be admissible there shall exist incriminating circumstances leading to the guilt of the accused.
- The counsel thereby claimed for acquittal of the accused based upon the merit of the above appeal.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The counsel for the respondent submitted that the post-mortem conducted herein shows there have been burns on the body thereby providing corroborative evidence to the PW 1’s statement with regard to the oral dying declaration.
- The counsel further submits that accused herein mentioned have been absconding since the day of the murder took place, this also forms an incriminating circumstance.
- The counsel has not made any statement with regard to the appeal of the appellant.
- The court therefore analysing the evidences present herein has justified stating that the oral dying declaration by the PW 1 shall be considered as it was trustworthy and truthful.
- The court further stated that the dying declaration must pass the test of reliability and it must be genuine.
- It also stated there need not be any corroboration for in to rely upon the same, if there exist a need it shall conduct the same.
- Referring to the case HeikrujamChaoba Singh v. State of Manipur [(1999) 8 SCC 458] it says that an oral dying declaration can be made basis for conviction if the court satisfies that it is truthful and trustworthy.
- In the present scenario there has not been any incriminating circumstance wherein the PW 1’s intentions were fount faulty thus with the oral evidence given by him the medical evidence on record and also the accused absconding have formed corroborative evidence thus making it a strong basis for conviction.
- Hence, the court has dismissed the appeal and also held that the oral dying declaration is also held valid when scrutinized and passes the test of reliability.
- Thus, the dying declaration even if it is an oral declaration can be admissible if the same can be scrutinized and if the same passes the reliability test. The court must be satisfied by the truthfulness of the same and only then it shall be admitted there is no necessity as to provide for corroborative evidence for the same.
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