2016 Supreme(SC) 535

SUPREME COURT OF INDIA
KURIAN JOSEPH, R.K. AGRAWAL, JJ.
State of Gujarat – Appellant(s)
Versus
Jayrajbhai Punjabhai Varu – Respondents(s)
CRIMINAL CRIMINAL APPEAL NO. 1236 OF 2010
Decided On : 11-07-2016

Important Point
Dying declarations recorded by investigating agencies have to be very scrupulously examined.

Headnote:(A) Evidence Act, 1872—Section 32(1)—Dying declaration—Evidentiary value—Courts below have to be extremely careful when they deal with a dying declaration as maker thereof is not available for cross-examination which poses a great difficulty to accused person—A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous—Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by relatives present or by investigating agency who may be interested in success of investigation or which may be negligent while recording dying declaration. (Para 10)

       (B) Evidence Act, 1872—Section 32(1)—Dying declaration—Evidentiary value—A number of times relatives influence investigating agency and bring about a dying declaration—Dying declarations recorded by investigating agencies have to be very scrupulously examined and court must remain alive to all attendant circumstances at the time when dying declaration comes into being—In case of more than one dying declaration, intrinsic contradictions in those dying declarations are extremely important—It cannot be that a dying declaration which supports prosecution alone can be accepted while other innocent dying declarations have to be rejected—Such a trend will be extremely dangerous—However, courts below are fully entitled to act on the dying declarations and make them basis of conviction where dying declarations pass all such tests. (Para 10)

       (C) Evidence Act, 1872—Section 32(1)—Dying declaration—Evidentiary value—Court has to weigh all attendant circumstances and come to independent finding whether dying declaration was properly recorded and whether it was voluntary and truthful—Once court is convinced that dying declaration is so recorded, it may be acted upon and can be made a basis of conviction—Courts must bear in mind that each criminal trial is an individual aspect—It may differ from other trials in some or other respect—Mechanical approach to law of dying declaration has to be shunned. (Para 11)

       (D) Criminal Law—Appreciation of evidence—Burden of proof in criminal law is beyond all reasonable doubts—Prosecution has to prove guilt of accused beyond all reasonable doubts—It is also rule of justice in criminal law that if two views are possible on evidence adduced in case, one pointing to guilt of accused and other towards his innocence, view which is favourable to accused should be adopted. (Para 13)

       (E) Evidence Act, 1872—Section 32(1)—Dying declaration—Necessary precautions—Court has to be on guard that statement of deceased was not as a result of tutoring, prompting or a product of imagination—Court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify assailants—Once Court is satisfied that declaration was true and voluntary, it can base its conviction without any further corroboration—It cannot be laid down as an absolute rule of law that dying declaration cannot form sole basis of conviction unless it is corroborated_1Rule requiring corroboration is merely a rule of prudence. (Para 12)

       (F) Indian Penal Code, 1860—Section 302—Criminal Procedure Code, 1973—Section 378—Murder of wife—Appeal against acquittal—Deceased gave statement that person (assailant) was unknown and there was no involvement of her in-laws or husband—Both statements are consistent and there is no contradiction as to role of respondent—There was no involvement of respondent in commission of offence—It cannot be said that there were contradictions in statements made before Police Officer and Executive Magistrate as to role of respondent in commission of offence and in such circumstances, one set of evidence which is more consistent and reliable, which in present case being one in favour of respondent, requires to be accepted— A dying declaration is entitled to great weight—Conviction basing reliance upon oral dying declaration made to father of deceased is not reliable and such a declaration can be a result of afterthought—Evidence available on record and sole evidence of father of deceased as compared to dying declaration do not inspire confidence in mind of Court to make it basis for conviction of respondent-accused—Appeal dismissed. (Paras 7, 10, 12 and 14)

       Facts of Case:

       Instant appeal has been filed against judgment and order passed by High Court of Gujarat at Ahmedabad in Criminal Appeal whereby High Court allowed appeal filed by respondent herein against judgment and order passed by Court of Sessions Judge convicting and sentencing respondent for offence under Section 302, IPC.

       Findings of Court:

       After considering evidence and judgments of courts below, we are of the opinion that evidence available on record and sole evidence of father of deceased as compared to dying declaration do not inspire confidence in mind of this Court to make it the basis for the conviction of respondent-accused. Hence, appeal fails and is accordingly dismissed.

       Result—Appeal dismissed.