Prosecution Can't Rely On Dying Declaration Unless Accused Is Confronted With Its Contents: Allahabad High Court

A bench of Justice Ashwani Kumar Mishra and Justice Dr Gautam Chowdhary observed thus while acquitting a husband and mother-in-law in connection with a dowry death case.

The division bench noted that the contents of the dying declaration had not been put to the accused during the trial for recording their statements under Section 313 CrPC.

The Court also raised doubts about the veracity of the dying declaration as it took note of the following circumstances which cast doubt on the same:

• The victim, in her dying declaration, stated that she is carrying a pregnancy of eight months, but no such pregnancy was found in the medical evidence. What happened to the fetus was not known.
• No explanation had been put forth by the prosecution as to what happened to the fetus if at all it was in existence. It is also a circumstance which would create some doubts on the dying declaration.
• The argument that chaste Hindi words are used in the dying declaration which are not expected of an illiterate lady also has to be kept in mind while evaluating the entire circumstances.
• The emergency doctor who treated the victim was not the doctor who certified the fitness of the victim for recording her dying declaration and the doctor who certified the fitness was otherwise not produced in evidence.

In view of this, the Court did not find it safe to rely upon the dying declaration alone in the facts of the case to sustain the finding of guilt recorded by the court below against the accused applicants.

The High Court was essentially dealing with a criminal appeal moved by the accused-appellants [Shahrukh Khan (husband of the deceased) and Anjum (mother-in-law)] who were convicted in 2022 by the Additional District and Session Judge, Aligarh under Sections 302, 323, and 307 IPC, read with Section 3/4 of the Dowry Prohibition Act and they were sentenced to life imprisonment.

The case in brief

The father of the deceased (Yaseen Khan) lodged a written report on December 21, 2018, stating that his daughter (Ruksar/victim/deceased) got married to the accused (Shahrukh Khan) in May 2018, and despite being given enough dowry, her in-laws harassed, ill-treated and assaulted her on account of dowry demands.

It was further stated in his report that on December 12, 2018, while her daughter was cooking food, her husband (accused Khan) allegedly assaulted her with an iron rod and after that, her mother-in-law along with her sister-in-law and brother-in-law, poured kerosene on her, and she was burnt alive.

The informant was intimated about the incident, and the deceased was taken to the hospital. The victim remained admitted to the hospital, and she ultimately died on the night of 04/05 January 2019.

In her dying declaration recorded on December 21, she allegedly claimed that she was a 19-year-old pregnant woman who was beaten by her husband at the instigation of her mother-in-law due to dowry demands and locked in a room, doused in kerosene, and set on fire by her husband.

The trial court convicted the accused-appellants by relying primarily on the dying declaration.

The accused-appellants had moved the court to challenge their conviction by contending that the dying declaration was not reliable and that the trial court had erroneously treated it as valid evidence.

In its judgment, the Court found faults with the fact that the contents of the dying declaration had not been put to the accused-appellants for recording their statements under Section 313 Cr.P.C.

"...we find that in none of the questions the contents of dying declaration have been specifically confronted to the accused for recording of their statements under Section 313 Cr.P.C. Law is settled that unless the contents of such dying declaration are confronted to the accused the prosecution cannot be allowed to place reliance upon the contents of such dying declaration," the Court said.

In this regard, the Court relied upon the Apex Court's 2019 ruling in Samsul Haque vs. State of Assam, wherein it was held that the incriminating material is to be given to the accused so that the accused gets a fair chance to defend himself.

The Court also placed reliance on a judgment of the Division Bench of the HC in the case of Rameshwar Lal Chauhan vs. State of U.P. 2023 LiveLaw (AB) 183, wherein a murder conviction had been overturned on the ground that though the trial court relied upon the dying declaration of the deceased to convict the accused, the same was not put to the accused in his statement recorded under Section 313 CrPC seeking his explanation.

In the 2023 Judgment, the High Court had observed that recording of a statement under Section 313 of the CrPC is not an empty formality during the trial. It added that since Section 313 of the CrPC prescribes the procedure to safeguard the interest of the accused, in the absence of seeking an explanation on this vital point, prejudice is caused to the accused.

Counsel for Appellants: Araf Khan, Lihazur Rahman Khan, Manoj Singh

Case title - Shahrukh Khan And Another vs. State Of UP 2024 LiveLaw (AB) 593

Case citation: 2024 LiveLaw (AB) 593

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