SC: A dying declaration, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of accused

  

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Supreme Court of India was dealing with the petition against the judgmentand order passed by the Gauhati High Court dismissing the CriminalAppeal by which it affirmed the judgment and order ofconviction passed by the Additional Sessions Judge (FTC), Sivasagardated 10.06.2010.

Brief Facts:

The appellant along with the co-accused (MunnaBhoi) came to the house of the deceased, namely, Uttam Dutta. The accused persons took the deceased along with them for the purpose of paddy plantation. The dead body of the deceased was found lying in a drain of Duribam Tea Estate with various injuries on the body, including burn injuries. No sooner the dead body of the deceased was recovered, then his brother Utpal Dutta went to the police station and registered the First Information Report (FIR). While investigation it was found that while working in a paddy field the locals saw the deceased coming out of the factory with burn injuries on his body. One of the prosecution witnesses HanuKhetrapal (PW2), who was present in the nearby agricultural field, enquired with the deceased as to what had happened. At that point of time, the deceased is said to have informed the PW2 that the accused persons had poured hot lali (raw material used for preparing local liquor) on his body as a result of which he had suffered burn injuries. Saying so, the deceased left and thereafter his dead body was recovered from the drain of Duribam Tea Estate.The trial court heldthe appellant herein, along with MunnaBhoi, guilty of the offence ofmurder of the deceased and sentenced them to undergo lifeimprisonment.Gauhati High Court dismissed the appeal filed by co-accusedMunnaBhoi.

Appellant’s Contention:

Learned counsel for the appellant submitted that as a rule of prudence the courts below should have insisted for corroboration before relying upon an oral dying declaration which otherwise is a weak piece of evidence. It was submitted that had the dying declaration been recorded in writing by an Executive Magistrate some sanctity could have been attached to the same. However, it would be too dangerous to place any reliance on an uncorroborated oral dying declaration made before a local person.It was submitted that the case at hand is one of circumstantial evidence. Conviction can be based on circumstantial evidence provided there are incriminating circumstances pointing only towards the guilt of the accused. 

SC’s Observations:

The issue for consideration before the SC was whether the High Court committed any error in dismissing the criminal appeal filed by the appellant herein against the judgment and order of conviction passed by the trial court?

SC observed that the High Court, upon reappreciationof the entire evidence,concurred with the reasons assigned by the trial court in its judgmentand order holding the appellant herein guilty of the offence of murder.The High Court accepted the oral dying declaration to be true andtrustworthy said to have been made by the deceased to the PW2. 

SC opined that, having regard to the evidence on record, thatHigh Court was justified in accepting the oral dying declaration madeby the deceased before the PW2as one reliable and inspiringconfidence.

SC stated that the law regarding the nature, scope and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuinity or veracity.

SC further stated that the court has,therefore, to subject it to close scrutiny. But once the court issatisfied that it is a truthful version as to the circumstances in whichthe death resulted and the persons causing injuries, the law does notexpect that there should be corroboration before it can be relied upon.However, if there are infirmities and the court does not find it safe tobase any conclusion on it without some further evidence to support it,the question of corroboration arises.

SC Held:

After evaluating submissions made by both the parties the SC held that “It appears from the materials on record, more particularly from the nature of the oral evidence, that something went wrong while the deceased and the accused persons were inside the liquor factory. It appears to be a case of sudden fight. It could be on account of some verbal altercation between the deceased and the accused persons while they were inside the liquor factory. In the overall view of the matter, we are convinced that there is no good reason to interfere in the present appeal.”

Case Title: Kamal Khudal v. State of Assam

 

Bench: J. Surya Kant and J. J.B. Pardiwala

Citation: CRIMINAL APPEAL NO. 470 OF 2015

Decided on: 14^th July, 2022

 

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