Can a ‘dying declaration’ qualify as evidence under the Indian Evidence Act?

On reading this case analysis, the readers will learn how the prosecution failed to prove its accusation beyond reasonable doubt and hence, lost the case. The Court in this case held that in order to establish the case, the prosecution had to prove each point.
TITLE Amar Rajendra Singh Vs. State Of Madhya Pradesh &Ors.
CITATION AIR 1965 MP 126
COURT High Court of Madhya Pradesh
JUDGES/CORAM Justice P Sharma and Justice N. Golvalkar
DATE OF JUDGEMENT 28.11.1964

Introduction

The term “Leterm Mortem” when translated means “words said before death” and in legal terminology it is called ‘Dying Declaration’. This concept was dealt with in this case by the High Court of Madhya Pradesh, explaining the validity of a dying declaration.

Facts

The facts of the case are as follows: On 21.09 and 22.09.1979, deceased Surjan, Amar Singh, Prabhu and Gopi planned to commit theft/robbery in the house of Damru. Tussibai (wife of Damru) got up and raised an alarm. Damru also woke up and saw only one miscreant from the roof. He then threw pieces of bricks towards him and he contended that one piece might have hit the miscreant. On hearing a cry, other villagers also got up and came out of their houses. They chased the miscreants who were four in number. Seeing the villagers coming towards them one of the miscreants fired, which hit one of their companions who was way behind them. Next day Damru proceeded towards the Police station to lodge a complaint but met the Sub-Inspector on the way and narrated the matter to him. Meanwhile a boy saw a man injured in the fields and being scared he went and told some elders. These men  interrogated the injured person and found out that he was Surjan, the man who had come to commit robbery along with his friends. Surjan narrated to them how in lieu of escaping from the villagers Amar Singh fired which hit him in the abdomen.

The Sup-Inspector recorded Damru’s complaint and then went to the injured Surjan and recorded his statement as per Section 161 of Code of Criminal Procedure 1973 and thereafter Surjan was shifted for medical examination but soon succumbed to the injuries and died.

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After completion of the investigation, a challan for offences under Sections 458 & 302/34 of Indian Penal Code was filed against appellant Amar Singh along with Prabhu and Gopi. Thereafter an appeal was preferred against the judgment and findings of the Sessions Judge, Datia, where the Appellant was convicted under Section 302 of the I.P.C. and sentenced to undergo life imprisonment.

Issues

The main issues in the case were:

  1. Whether or not the dying declaration is reliable where there is no proof of physical or mental fitness.
  2. Whether or not the statement made by the deceased to the Police Officer be read as per Section 25 of Indian Evidence Act.

Summary of court decision and judgement

The Court relied on the judgment given in Dannu Singh v. Emperor[1] where a similar situation arose and the Court had held that the statement of a dying dacoit as to the circumstances of the dacoity resulting in his death, giving the names of his associates, is not admissible in evidence against the other dacoits under Section 32 of the Evidence Act. In view of the above, the Court in the present case held that the statement of an accused being inadmissible would not become admissible merely because he was dead.

In this case the Investigating Officer was discredited by the Trial Court itself. The Trial Court did not accept the dying declaration recorded by the Naib Tehsildar, an Executive Magistrate, on the ground that the Investigating Officer himself has recorded the said statement, which ought to have been recorded by the Naib Tehsildar.

The Court further observed that the deceased Surjan had a serious injury. His condition was very serious. Whether he was mentally and physically fit or capable to give a statement had not been proved by the prosecution and no evidence had been led in that behalf.

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Thereby due to the failure of the prosecution to prove the case beyond doubt, the charges levied against the accused were dropped and the conviction order of Sessions judge was set aside thereby acquitting the accused.

Analysis

Section 25 of the Evidence Act is broadly worded and it absolutely excludes from evidence against the accused, a confession made by him to a police officer under any circumstances, while in custody or not. In this case, the Investigating Officer was investigating the matter on a report lodged by Damru for an offence under Section 458 of the IPC which relates to lurking house-trespass by night, against Surjan as well. “Confession” under Section 25 of the Evidence Act does not mean confession only of the crime under investigation. Thus, where the accused was charged with murder, a confession to the police of lesser offence (culpable homicide not amounting to murder) was also inadmissible.[2]

“A person is deemed innocent unless proven otherwise, beyond doubt.” This legal principle establishes that the burden of proof to prove commission of an offense is on the prosecution and until then the accused is deemed to be innocent. In this case, this notion played in favor of the accused Amar Singh as the prosecution failed to prove the points that were submitted as evidence. Firstly, the confession made to the police officer was not independently admissible in the Court of law thus the reliance of the confession by the prosecution was futile. Secondly, the prosecution claimed that the Surjan along with Amar Singh and two others was being chased by the villagers during which Surjan was shot and the rest fled thereafter; but the prosecution didn’t examine any villager before the Court. Thirdly, the prosecution claimed that Amar Singh bore a gun with 12-inched bullet but none was recovered in the investigation which further weakened the prosecution’s case. Lastly, the prosecution failed to solidify evidence to prove physical or mental fitness of the deceased Surjan while giving the statement (dying declaration). Thus, the case was entitled to go in favour of the accused Amar Singh.

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Conclusion

“A dying declaration is admitted in evidence because it is presumed that no person who is immediately going into the presence of his Maker will do so with a lie on his lips. However, the person making the declaration must entertain settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do.”  There is no rule or law which states that a dying declaration is not enough to prove the guilt of the accused but there are certain conditions and parameters laid down by the Court through various judgments as to when such a declaration can become conclusive evidence.  But due to the failure of the prosecution in this case to prove that the statement made by the deceased Surjan hours before death is a dying declaration, the judgment went in favour of the accused Appellant Amar Singh.

–END OF CASE COMMENT–

[1] AIR 1925 All 227

[2]  Ali Gohar v. Emperor 1941 (42) Cri LJ 805