Above: A candlelight protest against the Nirbhaya gang rape in Delhi in 2012

The apex court reiterates that a dying declaration given in a proper state of mind can be made the basis for conviction even in the absence of a thumb impression or signature

By Surabhi Mehra

Relying on various landmark precedents, the Supreme Court has reiterated that where a dying declaration is true, voluntary and correct, it should not be rejected on the grounds that the person who recorded it could not affix his signature or thumb impression.

The bench, consisting of Justices Indu Malhotra and R Subhash Reddy, upheld the order of the Madhya Pradesh High Court wherein the two accused were charged and thereafter convicted under Section 302 read with Section 34 of the Indian Penal Code on the basis of two facts: First, when the witness has turned hostile, his statement cannot be discarded in its entirety for the reason that he turned hostile, and second, where there are two dying declarations consistent with each other and in coherence with facts that lead to conclusion of guilt, only conviction is to be adjudicated and it cannot be vitiated merely because the thumb impression or signature could not be recorded.

The facts of the case are thus: On December 19, 1991, Ghansu Yadav filed an FIR against the accused persons wherein he stated that while he was returning from a police station after filing a complaint against one accused for beating his son, the two accused, who were hiding behind the bushes, caught him and beat him, causing serious injuries on his hands, legs and head. Thereafter, believing that Yadav had died, the accused threw his body into a canal. However, he regained consciousness and cried out for help and passers-by took him to hospital where he succumbed to his injuries. The prosecution witnesses, after examination-in-chief, turned hostile during cross-examination. The FIR lodged was considered  the first dying declaration and another one was recorded before an executive magistrate. Both were made when

Yadav was fully conscious and in a fit state of mind.

The sessions court convicted both the accused persons of murder and sentenced them to life imprisonment. The accused then knocked on the doors of the Madhya Pradesh High Court, which dismissed the appeal and upheld the finding of the sessions court. In doing so, the High Court relied on the landmark precedent of Laxman v. State of Maharashtra, wherein it was held: “What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution…”

In addition to the above, the High Court stated that “there was no inconsistency in the statement made by the deceased in the FIR lodged and the dying declaration recorded by the Executive Magistrate. The substratum of both the dying declarations remained consistent to the effect that both the appellants had assaulted the deceased with lathis on his head, hands and legs when he was returning from Ishanagar Police Station. The dying declaration was corroborated by the medical evidence that the appellants had inflicted grievous injuries on the deceased, which caused his death”.

The accused then appealed to the Supreme Court. The apex court, referring to the question of whether reliability can be attributed to the statement of the witnesses who turned hostile, observed that the statement of witnesses made during the examination-in-chief can be relied upon separately even if their version was turned upside down during cross-examination. The apex court relied on the landmark decisions in Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v. State of Karnataka, where it held that “the evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution witnesses turned hostile. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on careful scrutiny”.

Another issue that came up before the court was regarding the absence of any thumb impression or signature on the dying declaration. It upheld the veracity of the dying declaration while relying on the landmark precedent in Dharam Pal & Ors. v. State of U.P.  In this, it was held that “Section 32(1) of the Indian Evidence Act deals with dying declaration and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the person’s death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under the expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question. The principle on which a dying declaration is admissible in evidence is indicated in the maxim Nemo Moriturus Praesumitur Mentire, which means that a man will not meet his maker with a lie in his mouth”.

The court further said: “…if we look at the report dictated by the deceased in the light of the aforesaid propositions, it emerges that the names of the accused and the important features of the case have been clearly mentioned in the report. It contains a narrative by the deceased as to the cause of his death, which finds complete corroboration from the testimony of eyewitnesses and the medical evidence on record…”

To press home the point, the Supreme Court quoted the case of Sukanti Moharana v. State of Orissa wherein the Court took the view that there is no reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only because the person who recorded it could not affix his signature or thumb impression.