Case BriefsHigh Courts

Chhattisgarh High Court: Prashant Kumar Mishra, J. disposed of a criminal appeal where he altered the conviction of the appellant from the one under Section 302 (punishment for murder) to that under Section 304 Part I (punishment for culpable homicide not amounting to murder) of the Penal Code.

The appellant was convicted for the murder of her sister-in-law. The appellant had developed a fancy for the deceased. The marriage of the deceased was fixed on the day previous to the incident. On the morning of the day of the incident, the appellant inflicted axe blow on the deceased in the field. She went to her house and after some time she was taken to the police station where she registered FIR. After that, she was taken to the hospital but she died on the way. The appellant was tried and convicted by the trial court for the offence of murder punishable under Section 302. Aggrieved thereby, the appellant filed the present appeal.

The High Court noted that the deceased having died immediately after lodging FIR, it was required to dwell on the legal character of the said FIR, as to whether the same was admissible in evidence as dying declaration. Relying on Dharam Pal v. State of U.P., (2008) 17 SCC 337, the Court observed: “The legal position is therefore well settled that the FIR lodged by the deceased would attain the character and legal status of dying declaration if the victim dies before his/her examination in the Court.” Considering the same, the Court upheld the finding that the appellant committed the act that resulted in the death of the deceased.

However, the Court considered medical opinion of the doctor who conducted the post-mortem on the deceased, who stated that the deceased would have been saved if she would have been administered treatment immediately after the incident. The relatives of the deceased committed mistake by taking her first to the police station, rather taking her to the hospital. Considering such mitigating circumstances, the High Court altered the conviction of the appellant mentioned above. Also, the sentence of life imprisonment awarded to him by the trial court was reduced to 10 years, as already undergone by the appellant.[Ram Kumar v. State of Chhattisgarh, 2019 SCC OnLine Chh 83, decided on 22-07-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.

The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.

The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.

The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.

It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.

In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pritinker Diwaker and Ali Zamin, JJ. dismissed an appeal filed by the accused and held that the trial Judge was justified in convicting the appellants under Sections 302 and 34 of the Penal Code, 1860.

In the present case, the deceased Radhey Shyam Maheshwari was a practicing lawyer and also an active politician. Accused Chob Singh was earlier a block President of Congress party and he was expelled due to his anti-party activities. Since then he had inimical relations with the deceased. When deceased was going to the house of Advocate Rajendra Pal Gupta, the accused Chob Singh apprehended him and accused Dharma Pal and other three other accused attacked him. Dying declaration was also recorded regarding the same. Trial Judge framed charges against the accused-appellants and the deceased accused under Sections 302 and 34 IPC; whereas against accused-appellant, an additional charge was framed under Section 25 of the Arms Act, 1959. During the pendency of the trial, accused Chob Singh expired and the trial court proceeded with the case of remaining three accused persons. The trial Judge convicted the accused on the basis of the dying declaration and statements of two prosecution witnesses. The trial judge convicted the accused-appellant and acquitted Shyam Lal under Section 25 of Arms Act. The present appeal was filed challenging the said order.

Learned counsel for the appellant, Arvind Kumar Srivastava, contended that prosecution witnesses 1 and 2 were not trustworthy, and that language of dying declaration prima facie showed that it was a concocted piece of evidence. He submitted that no one in his dying declaration would say that he is making a statement on oath.

Learned counsel for the State, Amit Sinha, supported the impugned judgment and argued that the statement of the two eye-witnesses were supported by the injury/medical report of the deceased and that the dying declaration of the deceased was fully reliable and trustworthy as the same was duly certified by the Doctor and the recorder of dying declaration i.e. the Executive Magistrate had administered oath to him before the accused died.

The Court placed reliance on Ramakant Mishra v. State of UP, (2015) 8 SCC 299 where it was held that mere fact that in the dying declaration an oath had been administered to the deceased before recording the same, would not doubt the credibility of the dying declaration and would not nullify the same.

Taking cumulative effect of all the facts and evidence it was held that the trial judge was justified in convicting the appellants as the Court found no substance in the argument of the defense that due to his physical condition the deceased was not in a position to make any such dying declaration. Hence, the appeal was dismissed.[Vidya Ram v. State of U.P., 2019 SCC OnLine All 2265, decided on 07-05-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and Arindam Lodh, JJ. dismissed an appeal filed against the decision of the Sessions Judge whereby the appellant was convicted and sentenced under Section 302 IPC for committing the murder of his wife.

The appellant was alleged to have poured kerosene on his wife and put her ablaze. He was accordingly convicted by Sessions Judge. Senior Advocate P.K. Biswas assisted P. Majumdar, Advocate representing the appellant challenged the dying declaration made by the deceased wife. It was argued that the dying declaration was not taken in accordance with the established principles of law and thus could not form the basis of recording conviction against the appellant. Per contra, A. Roy Barma, Additional Public Prosecutor appearing for the State submitted that the objections relate to some technical defects which should be ignored.

The High Court, on careful scrutiny of evidence, found that the signature or thumb impression of the victim could not be taken on the dying declaration as her hands were totally burnt. The Court put reliance on Inder Singh v. State (UT of Delhi), (1978) 4 SCC 161 and Pattu Rajan v. State of T.N. (2019) 4 SCC 771. It was stated: “There is no thumb rule that dying declaration must be certified by doctors. It can be said to be only a rule of prudence. In our considered view, if the person who records the dying declaration is convinced with the fitness of the victim at the time of recording the declaration in question, then, there is no reason to doubt the reliability or credibility of the dying declaration.”

The Court further observed: “Another important aspect to be borne in mind is that in our country, the Executive Magistrates or the Doctors are not adequately trained in such affairs. Keeping in mind the principle enunciated in Pattu Rajan case we are also of the considered view that the traditional dogmatic hyper-technical approach should be replaced by the realistic and traditional approach  for administering justice in a criminal trial.” In such conspectus, it was held that there was no reason to interfere with the impugned judgment and the appeal was, therefore, dismissed.[Khokan Sarkar v. State of Tripura, 2019 SCC OnLine Tri 197, decided on 25-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed a criminal appeal and set aside the decision of the trial court whereby the appellant was convicted under Section 302 IPC for murdering his wife.

The appellant was convicted on the basis of dying declaration recorded by his deceased wife. It was alleged that on the fateful day, the appellant and his wife had a quarrel after which he poured kerosene on her and set her ablaze. The wife untimely succumbed to burn injuries in hospital. Aggrieved by his conviction recorded by the trial court, the appellant filed the present appeal.

Neha Bhide, Advocate, representing the appellant contended that there were lacunae in the dying declaration, it was unreliable and a fake document. Per contra, V.V. Gangurde, APP, appearing for the State submitted that there was nothing to doubt the genuineness of the dying declaration.

The High Court noted that the infirmities in the dying declaration spoke volumes about its genuineness. It did not bear the endorsement of the Doctor as to whether the wife was in a fit state to make a statement. There were interpolations at more than one places in the declaration. There was no description as to whether the thumb impression was of the right hand or left hand. The Court observed: “A dying declaration can be the basis of conviction, if the Court comes to the conclusion that it represents truthful version. To pass the test of reliability a close scrutiny is necessary as the accused has no opportunity to cross examine the maker of dying declaration. It must inspire full confidence of the Court regarding its correctness and voluntariness and court must ensure that the statement was not the result of tutoring, prompting or product of imagination.” 

Holding that the dying declaration in the present case failed to pass the test of reliability, the Court was of the opinion that appellant deserved to be given benefit of doubt. Consequently,the appeal was allowed and the appellant was acquitted of charges as framed. [Ashwini Rammeher Sharma v. State of Maharashtra, 2019 SCC OnLine Bom 803, decided on 08-04-2019]

Case BriefsHigh Courts

Bombay High Court: In absence of convincing evidence for sustaining the conviction of the appellants (in-laws), Sadhana S. Jadhav, J. reversed the trial court’s judgment whereby they were convicted for the offences punishable under Sections 306 (abetment of suicide) and 498-A (cruelty to woman) IPC.

Ujawala (deceased) was married to Pravin, son of the appellants. She had disclosed to her parents that she was happy with Pravin, but was ill-treated and harassed by her in-laws. On 06-04-1995, she immolated herself. Pravin extinguished the fire and took her to the hospital, but she succumbed to burn injuries. Appellant’s conviction rested on the dying declaration made by Ujwala where she categorically stated that the appellants quarreled with her and abused her for no reason, and therefore being fed up, she immolated herself.

Shekhar A. Ingawale, Advocate represented the appellants. Per contra, Pallavi Dabholkar, Assistant Public Prosecutor appeared for the State.

The High Court noted some pertinent facts: (i) There was a doubt as to endorsement  of the Doctor that Ujawala was in a fit condition to give the statement; (ii) as per the record, Ujwala sustained 100% burn injuries on both hands, in spite of that a clear thumb impression was obtained on her statement; (iii) the statement was snot read-over to Ujwala; (iv) Ujwala’s father was present at the time of recording of her statement  and even countersigned it. Such and other facts, in the Court’s opinion, spelled a doubt on the veracity of Ujwala’s dying declaration.

The Court additionally noted that options were open to Ujwala. She was working in a factory, was economically independent and her husband was supportive. In such a view, it was held that no conviction could be recorded solely on the basis of the dying declaration. The appeal was thus allowed. [Nana Dhondiram Lad v. State of Maharashtra, 2019 SCC OnLine Bom 605, decided on 15-03-2019]

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

The Court was hearing a matter wherein the deceased had died after the accused stabbed him during a quarrel relating to land dispute. He gave a statement to the Doctor when he was taken to primary care and that statement, in which the victim narrated the occurrence including the names of the assailants, was treated as a dying declaration. The Trial Court had, upon appreciation of the material on record, acquitted all the accused and held that the dying declaration of the victim was unreliable.

Noticing that the Trial Court had given more weightage to the minor variations found in the evidence   of the prosecution witnesses as compared to the information found in the dying declaration, the Court said:

“The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult   for   such   a   victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot­like manner.”

The Court also said that the Trial   Court   was wrong in assuming that   the   Investigation   Officer   in collusion   with   the   doctor   wilfully   fabricated   the   dying declaration. It said:

“It is needless to state that the Investigation Officer and the doctor are independent public servants and are not related either to the accused or the deceased.  It is not open for the Trial Court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.”

[Laltu Ghosh v. State of West Bengal, 2019 SCC OnLine SC 236, decided on 19.02.2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of the Delhi High Court comprising of Sunil Gaur and Pratibha M. Singh JJ., dismissed an appeal against conviction before it. The appellant had been convicted under Section 302 IPC for the pre-meditated murder of the deceased and pleaded for scaling down of the offence convicted for to culpable homicide not amounting to murder under Section 304 IPC.

The trial Court had convicted the accused relied on the dying declaration of the deceased (Ext. PW 3/A), the evidence of his wife (PW 3) and the evidence of the accused’ brother (PW 7). The appellant challenged the conviction on the grounds that the evidence of the initial investigating officer (PW 19) and the accompanying constable (PW 14) were inconsistent regarding the time of preparation of rukka (statement given) and that the same creates serious doubts as to authenticity of the prosecution’s case. Further, the appellant submitted that PW 7’s statements in the cross examination were vastly different than his statements in the examination-in-chief and hence, the ocular evidence is inconsistent and unreliable.

The Court took note of the submissions and held that the dying declaration of the deceased was fully corroborated by evidence of PW 3 who was an eyewitness to the incident. Her testimony remained unshaken in the cross-examination. Regarding PW 7 turning hostile, the Court observed that his cross-examination had taken place almost 13 months after recording of evidence and opined that such a long gap may have urged him to turn hostile.

Relying on the Supreme Court judgment in Ramesh v. State of Haryana, (2017) 1 SCC 529, the Court reiterated that it is common for witnesses to turn hostile in criminal cases and that it should not be a reason to let the accused go scot free if there are other evidences to support the charges against the accused. Explaining the importance attributed to a dying declaration, the court relied on Lakhan v. State of M.P., (2010) 8 SCC 514 to reiterate that a conviction can be upheld solely on the basis of a dying declaration meaning that a dying declaration is to be disbelieved only if there are suspicious circumstances surrounding the same. The rukka was thus held to be reliable evidence unshaken by the contradictory versions of PW 7. Appeal dismissed. [Vishal v. State, 2018 SCC OnLine Del 8709, decided on 21-4-2018]

Case BriefsSupreme Court

Supreme Court: Asking the Courts to be careful while dealing with dying declarations, the Court held that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has 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.

Regarding the approach to be followed in case of more than one dying declaration, the bench of Kurian Joseph and R.K. Agrawal, JJ held that the intrinsic contradictions in such dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. However, it was held that the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. It was further held that The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned. [State of Gujarat v. Jayrajbhai Punjabhai Varu, 2016 SCC OnLine SC 688, decided on 11.07.2016]