The Bench of Justices AM Badar and Sunil Kumar Panwar acquitted a husband of wife’s murder charge who was convicted in year 1995.
The bench acquitted the appellant-husband observing the dying declaration “artificial in nature”.
“If the dying declaration fails to pass the test of reliability and truthfulness, then the same is required to be ignored from consideration. There is no rule of law that the dying declaration must be recorded by a particular authority”.
In the matter, in July 1995, the learned Additional Sessions Judge held the appellant-husband guilty of an offense punishable under section 302 of the Indian Penal Code. and sentenced to suffer him for imprisonment for life.
The appellant-husband is the second husband of the deceased woman. The couple were living in a rented house in Bihar Munger district.
According to the police report, in the night of 13th and 14th August 1993 the accused-husband started beating his wife, thereafter he had taken an axe from the house and gave a blow of that axe on the neck of the deceased woman. The deceased then went to hospital in an injured condition and ultimately succumbed to the injury sufferred by her on the very same day. A crime was registered on 14th August after the statement was recorded at at 1:30 am on same date by the by Assistant Police Inspector Sushil Kumar Khanna.
The learned Advocate appointed to represent the appellant, argued that the entire case is based on the dying declaration of the deceased which is not trustworthy and reliable to convict the appellant/accused. It was further argued that, 2 witness turned hostile and one witness casts a serious doubt on the case.
“The injury was on the neck and the deceased succumbed to the injury within a short period of time. Therefore, it cannot be said that the deceased was in a position to make the statement.”
The bench said that the dying declaration becomes relevant in cases in which the cause of that person’s death comes into question. Further said that the dying declaration has to be judged in the light of the surrounding circumstances with reference to the principles governing the weighing of evidence.
“The dying declaration can form the sole basis for conviction provided that the same is found to be truthful and reliable… If the dying declaration fails to pass the test of reliability and truthfulness, then the same is required to be ignored from consideration.”
The bench further observed that the statement of the deceased was treated as FIR. The dying declaration was a full page hand written document which covers the minute details. The declaration shows that the deceased has stated her full name with the name of her husband. She stated her residence details, location of the house, and able to describe the minute details. The bench also noted that this was midnight at 1:30 am when she stated. It was also stated in the declaration that she was beaten at 08.00 P.M. and she put her thumb impression on it.
The bench said that such minute and elaborate details is not even expected from a person having normal state of mind.
“we note that it is containing the minute and elaborate details which is not even expected from a person having normal state of mind.”
The bench after pursuing the declaration stated that the declaration makes it clear that it is “written mechanically in the format in which police usually records the statement of the victim or the witnesses”.
The bench said that “reasonable doubt lurks in a judicial mind” that whether the statement given by deceased or it is the description of incident written by police.
“Such a detailed and elaborate declaration cannot be expected from a person suffering serious injury on the vital part of the body after suffering heavy blood loss.”
The bench also noted that the dying declaration was recorded when the deceased was admitted in the Hospital and was taking the medical treatment, but the cross examination unerringly points out that “he has not even approach the attending Medical Officer who was treating the deceased at that time”. He has not even recorded the declaration in question answer form.
The bench futher stated that,
“For the reasons stated in foregoing transactions we are unable to hold so, in the instant case. Therefore we are not in a position to make the dying declaration of deceased Mira Kumari alias Shakuntala Devi as a sole basis for conviction of the accused.”
The bench futher added that,
“trial Court has completely misread the material evidence and has failed to consider the legal position in respect of appreciation of evidence concerning the dying declaration.”
The bench set aside the trial court conviction order and acquitted the appellant-husband of the offence.