Bhagirath Vs. State of Rajasthan - (High Court of Rajasthan) (19 Jan 2017)

Person who records dying declaration must be satisfied that deceased was in fit state of mind

MANU/RH/0035/2017

Criminal

In present criminal appeal, Accused-Appellant, has challenged judgment passed by Additional Sessions Judge, by which accused appellant was convicted for offences under Sections 498A and 302 of Indian Penal code, 1860 (IPC). Trial Court considered the entire evidence relied upon dying declaration of the deceased, convicted accused Appellant. Issue for determination is whether dying declaration recorded by ASI, and Executive Magistrate, would be sufficient to record finding of conviction against the Appellant.

Discussion of evidence created serious doubt about fact of recording 'Parcha-Bayan' by ASI, upon which FIR was registered against Accused-Appellant. No satisfaction about fitness and state of mind was recorded by the Executive Magistrate before recording the dying declaration of deceased. All relatives including in-laws of deceased and maternal side, turned hostile and in both the dying declarations, no fitness certificate was obtained from doctors who were present in the hospital. Therefore, it was not safe to rely upon so-called two dying declarations so as to hold accused appellant guilty for alleged crime of murder.

Constitution Bench of Hon'ble Apex Court in the case of Laxman v. State of Maharashtra, held that absence of certificate of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it, must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken.

In facts of present case, neither Executive Magistrate, Rajgarh nor ASI, has recorded their own satisfaction while recording the statements/dying declaration of the deceased. Even doctor, who was present in Hospital, has not been asked to give fitness certificate declaring the injured to be in a position to give statement. Whole prosecution case which is solely based upon dying declaration is doubtful. Therefore, it is a fit case to reverse the finding of conviction arrived by trial Court so as to hold accused appellant guilty for the offence of murder. Furthermore, there is no corroborative evidence on record to effect that deceased, was subjected cruelty in connection demand of dowry. Thus, conviction recorded by trial court holding accused appellant guilty for offence under Section 498A of IPC, is not sustainable in law. Consequently, while extending benefit of doubt, instant criminal appeal filed by accused appellant, is allowed.

Relevant : Laxman v. State of Maharashtra, MANU/SC/0707/2002 : AIR 2002 SC 2973

Tags : CONVICTION DYING DECLARATION CREDIBILITY