"Dying Declaration Recorded By Police Officer Is Admissible": Allahabad High Court Upholds Life Sentence In Murder Case

The Allahabad High Court recently upheld the life sentence of a convict in a murder case that dates back to the year 2002 while stressing that there is no prohibition that the police personnel should not record dying declaration and that such a dying declaration is also admissible in evidence.

The Bench of Justice Ramesh Sinha and Justice Vikas Budhwar further noted there might be certain defects in the investigation so conducted by the Investigating Officer, but the same cannot ipso facto be a ground to hold that the appellants are not guilty, as there exists ocular and documentary evidence, which proves that the appellants have committed the murder of the deceased.

The Facts in brief 

An FIR was registered on February 15, 2002, on the basis of the information provided by the complainant, alleging that at 7 o'clock in the morning, he, along with his brother Latheru Ram (Deceased) had gone to the field, when suddenly both the appellants appeared there and they hurled abuses and threatened to kill the complainant and his brother on account of an old rivalry.

Thereafter, the appellants took out their country-made pistol and with the intention of killing the complainant and his brother, fired on them. Though the complainant escaped the injury, his brother sustained bullet injuries on his stomach as well as left hand, and thereafter, he became totally unconscious and fell down.

The deceased was first brought to his house, and after waiting for 20-25 minutes, thereafter, they all proceeded for the police station, which was 8 km away from the house, in a jeep, and then the FIR was lodged at 08:10 a.m.

It had come on record that PW-7 being the Sub-Inspector Indraprakash had recorded the dying declaration and according to him, the deceased had named the appellants with respect to the commission of the offence.

Later on, the deceased was sent to District Hospital at Sultanpur as his condition was quite critical wherein he succumbed to the armed injuries at 09:45 a.m.

After concluding the investigation, the investigating officer submitted a charge sheet against the accused Prem Nath Yadav and Sanjay Yadav. The trial court framed charges against them u/s 302/34, 504, 506 IPC and Section 3(1) U.P. Gangster Act and Anti Social (Prevention) Act, 1986 and after conducting the trial, convicted them under the said offences.

Thus, the appellants moved the instant appeal against the judgment and order dated 11.09.2015 passed by Additional Sessions Judge/Special Judge Gangster, Sultanpur.

Submissions put forth

It was primarily argeud by the appellants that dying declaration in the instant case was recorded by the police personnel and further the certificate of fitness was also not obtained from the doctor.

In this regard, it was contended that there is a cloud regarding the fact that as to whether the dying declaration was recorded or not, as according to the learned counsel for the appellants, the deceased was in a critical condition and he might have died before the recording of the dying declaration

The observations made by the Court

The Court noted that the deceased was brought to the police station at 08:00-08:10 a.m. on 15.02.2022 and the medico-legal report was prepared at 09:20 a.m. and between 09:20 and 09:45 a.m, the dying declaration was recorded by the police personnel, when the deceased named the appellants, who had committed the offence.

Significantly, the Court opined that the time for recording the dying declaration was too short to wait for the Magistrate to arrive or take a certificate of fitness from the doctor as in the case in hand, PW-7 waited either for the doctor or for the Magistrate to arrive, then by that time, it would have been too late for recording the dying declaration.

Against this backdrop, the Court observed thus:

"This Court has to adopt a pragmatic approach as this Court cannot travel into the mind of the person, who was recording the dying declaration, as he was the best-suited person to take a decision for recording the dying declaration. Nonetheless, there is nothing on record to suggest that there was any animosity of PW-7 with the appellants. There is also no cross-examination conducted by the defence on the question of the dying declaration...Dying declaration cannot be merely discarded on the ground that the same has been recorded by police personnel or certificate of fitness was not obtained."

With this, the Court also discarded the arguments of the Applennats that there were certain defects in the probe as the court observed that the investigation by itself cannot be a ground for acquittal and it is the legal obligation of the Court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not.

"Notably, there exists dying declaration of the deceased, statement of PW-1 (complainant) as well as the relevant fact that the appellants could not produce any evidence to show that they are entitled to the benefit of alibi and other crucial facts that the motive stood proved, as it also acted as a catalyst for the commission of the crime," the Court held in the end as it dismissed the appeal of the appellants. 

Case title - Prem Nath Yadava & Another v. State of U.P.
Case Citation: 2022 LiveLaw (AB) 39

Click Here To Read/Download Judgment