Oral Dying Declaration Which Is Reliable & Not Controverted By Defence Is Admissible In Evidence: Gujarat High Court

As per the FIR, the complainant received telephonic information that his sister had suffered burn injuries in her matrimonial house, three years after the marriage, and was being taken to the hospital.

He stated that he stopped the said car and found his sister lying in the middle seat in a burnt condition. He further claimed that she informed him that she had set herself ablaze due to harassment meted out to her by her husband and in-laws in connection with dowry demands.

The trial court while acquitting the accused had disbelieved the complainant's statements.

In appeal, the APP referred to Section 113A of the Evidence Act to argue that there is a presumption against the in-laws if a married woman commits suicide within 7 years of marriage and had made allegations of cruelty immediately prior to that.

The Bench observed that the couple had not been residing together for the past 1.5 years prior to the incident on account of regular physical and mental torture. The Complainant (sister) of the victim had also confirmed that the victim had admitted to being forced to furnish Rs.10,000 as dowry. The consistent harassment had led her to commit suicide in the aforesaid manner. Keeping these facts in mind, the Single Judge remarked:

"It is the cardinal principal of law that whenever the facts deposed by any witness/es in the examination-in-chief remain uncontested / uncontroverted by the defence, in such circumstance, the evidence adduced before the Court is believable and admissible in evidence."

In the instant case, the oral dying declaration by the victim was not controverted by the defence and therefore, it was held to be admissible.

The High Court also rejected the contention that the PWs were relatives of the witness and therefore, not independent. It referred to Seeman alias Veeranam v. State, where the Apex Court had held that merely because the witness could be a relative did not imply that his statement could be rejected in totality.

The High Court also affirmed that Section 113A of the Evidence Act would be attracted in the instant case. Further, the victim was conscious and able to talk when the Complainant first met her while en route to the hospital. She had made clear allegations of cruelty against the Accused persons. Additionally, the independent witness, the driver of the family had supported the case of the Prosecution. As far as minor contradictions were concerned, the High Court reiterated that normal discrepancies were bound to occur in the depositions of the witnesses due to lapse of time or mental disposition or errors in memory.

Thus affirming the significance of a reliable oral dying declaration, the High Court sentenced the husband of the victim to rigorous imprisonment for 5 years under Section 306 IPC. Both the father-in-law and mother-in-law were sentenced to simple imprisonment for 1 year.

"In the case on hand, the complainant in his complaint as well as in his examination-in-chief on oath has deposed the fact with regard to the oral dying declaration given by the deceased, however, the same is not controverted by the defence in cross-examination and therefore, it is admissible in evidence," the Court concluded.

Case No.: R/CR.A/575/2008

Case Title: STATE OF GUJARAT v/s LAXMANBHAI @ LAKHABHAI PRATAPBHAI THAKOR & 2 other(s)

Citation: 2022 LiveLaw (Guj) 288

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