Important point
In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish.

Headnote:(i) Indian Penal Code, 1860-Section 302 - Murder-Conviction solely on basis of dying declaration -Sustainability of-Charge that accused poured kerosene oil on his wife and lit match and burnt her-Alleged dying declaration claimed to be recorded by a Doctor who attended victim at hospital-He had not taken signature of victim or thumb impression of victim nor any other person had attested statement alleged to have been made by victim-Medical Officer who admitted victim had endorsed in records that victim was not in fit condition for making statement-Endorsement found corroboration from evidence of police-Head of the department of burns department of hospital had no knowledge of alleged dying declaration-Duty of Doctor who claimed to have recorded dying declaration at burns department doubtful-Dying declaration unreliable-Conviction rendered by trial Court and confirmed by High Court unjustified-Conviction set aside. (Paras 14 to 21)
       (ii) Dying declaration-When can be sole basis for conviction without need for independent corroboration? - Conditions precedent to base dying declaration for conviction (Section 32 of Indian Evidence Act).
       Held : A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premiss that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence-neither extra strong nor weak-and can be acted upon without corroboration if it is found to be otherwise true and reliable. (Para 10).

Judgment

D.P. Mohapatra, J.-In this appeal filed by the accused Jai Karan the judgment of the learned Additional Sessions Judge, Delhi in Sessions case No. 16/91 holding him guilty of the charge under Section 302 IPC for the murder of his wife Wanti Devi (hereinafter referred to as ‘deceased’) and the order sentencing him to R.I. for life which was confirmed by the High Court of Delhi in Criminal Appeal No. 91/94, is under challenge.

2. The genesis of the case is that the relationship between the appellant and the deceased was not cordial. The deceased had gone to the Court with a claim for maintenance against the appellant. On the intervention of their relations and well-wishers the differences were patched-up and she withdrew the case. Thereafter the deceased returned to her marital home and started living with the appellant. This happened about 7-8 months before the fateful incident.

3. On the intervening night of 25/26.9.90 the deceased was admitted to the Jai Prakash Narain Hospital, Delhi (LNJPN) with extensive burn injuries on her body. On being informed about it by the duty constable, S.I. Baltej Singh (PW 19) arrived at the hospital and obtained the medicolegal certificate of the deceased in which it was stated inter-alia that the story given by the patient was to the effect that she was burnt by her husband by pouring kerosene oil after a fight between the two. On such information a formal FIR under Section 307 IPC was registered. Later in the day at about 9.45 a.m. on receiving the information that Wanti Devi expired at 8.35 a.m. the case was converted into one under Section 302 IPC. After investigation charge-sheet under Section 302 IPC was filed against the appellant.

4. Having denied the charge the appellant faced trial. It was his case that the injuries sustained by the deceased were accidental and the incident occurred when she was trying to light the kerosene stove.

5. The prosecution examined in all 19 witnesses including three Doctors, Dr. Anil Kumar Aggarwal (PW 2), who conducted the post mortem examination of the deceased; Dr. P.S. Bhandari (PW 3), who was the head of the unit of the LNJPN Hospital, Delhi in which injured Wanti Devi was admitted; Dr. Gaurav Nijhara (PW 11), who is said to have recorded the dying declaration of the deceased (Ex. PW 11/A); Munshi Ram (PW 4) and Joginder Singh (PW 5) neighbours of the parties; Hari Singh (PW 10) father of the deceased; Chhano Devi (PW 17) mother of the deceased; Prem Singh (PW 16) a nephew of the deceased and Baltej Singh (PW 19), Sub-Inspector of Police, the Investigating Officer. Neither the neighbourers nor the relations of the deceased supported the prosecution case and they were cross-examined by the public prosecutor with permission of the Court.

6. Beena (DW 1) daughter of the deceased was the sole witness for the defence.

7. The learned trial judge, as appears from the discussion in the judgment, believed the prosecution case that it was the accused who poured kerosene on his wife and lit the match-stick on account of which she suffered the fatal injuries, relying mainly on the dying declaration (Exh. 11/A) and accordingly passed the order of conviction and sentence.

8. The High Court on perusal of the oral and documentary evidence came to the conclusion that the dying declaration was a reliable piece of evidence on which the order of conviction could be based and accordingly confirmed the judgment and order of the trial Court.

9. The short question that arises is whether the dying declaration said to have been made by the deceased (Exh. 11/A) is believable and acceptable and conviction can be based on the same.

10. A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premiss that ordinarily a dying person will not falsely implicate an innocent person

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1999 Supreme(SC) 1116

Important pointIn order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish.

Cases Referred (4)

Important point
In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish.