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1989 Supreme(Cal) 421
IN THE HIGH COURT AT CALCUTTA
Monoj Kumar Mukherjee & Shiba Prasad Rajkhowa, JJ.
Ram Ratan Paramanik & Ors.
vs.
The State
CRIMINAL APPEAL No. 336 & 342 of 1979
Decided On : August 21, 1989
Advocate Appeared:
Balai Chandra Ray, Ashim Roy, for appellant in Crl. Appeal no. 342 of 1979.
A.K. Auddy, for appellant in Crl. Appeal no. 336 of 1979.
Biplab Mitra, for State in both the appeals.
A dying declaration recorded by a police officer is admissible under Section 32 of the Evidence Act, 1872, in view of the exception provided in Section 162(2) of the Code of Criminal Procedure, 1973, but it should be left out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor.
Headnote:
EVIDENCE ACT - SECTIONS 32, 162 - CRIMINAL PROCEDURE CODE, 1973 - SECTIONS 161, 313 - DYING DECLARATION - RELIABILITY - RECORDING BY POLICE OFFICER - CONDITIONS - STRICTEST SCRUTINY AND CLOSEST CIRCUMSPECTION - SOLE BASIS OF CONVICTION - CAPITAL PUNISHMENT.
Fact of the Case:
The prosecution relied on two dying declarations, one recorded by a private medical practitioner and the other by a police officer, to prove that the appellants had assaulted the deceased, leading to his death. However, the court found that the dying declaration recorded by the police officer was inadmissible as it was not recorded by a magistrate or a doctor, and no explanation was given for this.
Finding of the Court:
The court held that the dying declaration recorded by the police officer was inadmissible as it did not satisfy the conditions laid down by the Supreme Court in Dalip Singh v. State of Punjab and State (Delhi Administration) v. Lakshman Kumar. The court also found that the dying declaration recorded by the private medical practitioner was unreliable as it was not signed by the deponent, his thumb impression was not taken, and the doctor did not produce the document containing the statement during the trial.
Issues: 1. Whether a dying declaration recorded by a police officer is admissible under Section 32 of the Evidence Act, 1872, in view of the exception provided in Section 162(2) of the Code of Criminal Procedure, 1973? 2. Whether a dying declaration can be made the sole basis of conviction, especially when it is used to impose capital punishment? 3. What are the conditions that must be fulfilled before a dying declaration can be admitted into evidence?
Ratio Decidendi: 1. A dying declaration recorded by a police officer is admissible under Section 32 of the Evidence Act, 1872, in view of the exception provided in Section 162(2) of the Code of Criminal Procedure, 1973, but it should be left out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor. 2. A dying declaration can be made the sole basis of conviction, but it must be subjected to the strictest scrutiny and closest circumspection. 3. The conditions that must be fulfilled before a dying declaration can be admitted into evidence are: - It must be made by a person who is in a dying state and who believes that he is going to die. - It must be made in response to a question put to the declarant by a competent authority. - It must be made voluntarily and without any coercion or inducement. - It must be recorded in writing or by audio-visual means.
Final Decision: The court allowed the appeals, set aside the impugned order of conviction and sentence, and acquitted all the appellants.
Monoj Kumar Mukherjee, J.
These two appeals have been heard together as both stem from the judgment delivered by the learned Sessions Judge, Howrah in Sessions Trial no. XXX of April 1979 convicting and sentencing the sole appellant in Criminal Appeal no. 342 of 1979 under s. 302, three of the four appellants in Criminal Appeal no. 336 of 1979 under s. 324, and the other under s. 323 of the Indian Penal Code.
2. The prosecution case, briefly stated, is as follows. In the morning of May 25, 1978, Kamala Kanta Pramanik @ Ashoke Paramanik (P.W.1) along with his two relatives went to a piece of land, adjacent to their residential house in Puranipara within the Police Station of Shyampur. There an altercation stated between him and his neighbour Ram Ratan Paramanik (one of the appellants herein) over an incident of assault that took place a fortnight ago. In course of such altercation Ashoke snatched away the wooden club that Ram Ratan was carrying and hit him with it. Ram Ratan then left the place only to come back after 10 minutes with the other for appellants. They surrounded the house of Ashoke and started petting brick bats towards it. When Ashoke and his father Narendra Nath (the deceased) came out of their house they started assaulting Narendra Nath with lathi, iron rod, brick bats etc. When Ashoke came to his rescue they also started assaulting him. However at the intervention of some neighbours the assault stopped. A local doctor was then summoned who examined Narendra Nath and advised his immediate removal to hospital. In the meantime Ashoke went to the police station and lodged an information about the incident on the basis of which a case under ss. 147, 148, 447 and 324 of the Indian Penal Code was started against the five appellants. As Narendra Nath succumbed to his injuries in the hospital on June 4, 1978, the police submitted charge sheet under s. 304 of the Indian Penal Code also.
3. The appellants pleaded not guilty to the charges levelled against them and contended that they were falsely implicated.
4. To prove its case, the prosecution examined 16 witnesses, some of whom, in their statements recorded under s. 161 Cr. PC., claimed to have seen the incident themselves. During trial however they disowned such claim and as such were declared hostile. In fact, Ashoke also did not support the case of the prosecution so far as it sought to implicate the appellants. In his deposition, he stated that his father sustained injuries due to throwing of brick bats only, but he could not say whose brick bats hit him. In such circumstances, to prove its case, the prosecution relied on the dying declarations made by the deceased before Dr. Santosh Pal (PW 7), a private medical practioner who examined him after the incident and before Sub-Inspector Gaur Chandra Mondal (PW 16) who recorded the same under s. 161 Cr. PC on May 26, 1978 in the Uluberia hospital.
5. Considering the facts and circumstances of the instant case in the light of the observations made by the Supreme Court in the case of Dalip Singh v. State of Punjab, reported in AIR 1979 SC page 1173 which was approved by it in its later decision in the case of State (Delhi Administration) v. Lakshman Kumar, reported in AIR 1986 SC 250 the statement of the deceased as recorded by the Investigating Officer under s. 161 Cr. PC (Ext. 5) does not inspire confidence. In the case of Dalip Singh (supra) the Supreme Court observed as under :
“..................although a dying declaration recorded by a police officer during the course of investigation is admissible under s. 32 of the Indian Evidence Act in view of the exception provided in sub-s. (2) of s. 162 of the Code of Criminal Procedure, 1973 it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a Doctor. As observed by this Court in Munna Raja v. State of Madhya Pradesh (1976) 2 SCR 764 (AIR 1976 SC 2199)
