Oral Dying Declaration Made To Close Relatives Requires Cautious Assessment Before Being Used To Convict Accused : Supreme Court

The Supreme Court observed that when the conviction was based on the deceased's oral dying declaration to a close relative, the courts must exercise due caution in believing the testimony of the close relative to convict the accused.

The bench comprising Justice CT Ravikumar and Justice Sudhanshu Dhulia heard a case where the prosecution tried to prove the guilt of the accused based on the oral dying declaration made by the deceased to her mother. The trial court convicted the accused in a murder case based on the deceased's mother's testimony deposing that her son (deceased) had made an oral dying declaration pointing out the names of the accused.

However, the conviction was set aside by the High Court after noting a material discrepancy in the deceased mother's version because the mother, who was the informant in the case, had not averred anything in Section 161 Cr.P.C. statements about a dying declaration made to her by her son. However, at the stage of the trial, she testified before the court about an oral dying declaration being made by the deceased to her.

Affirming the High Court's finding, the judgment authored by Justice Ravikumar observed that:

“Through the evidence of PW8, the mother of the deceased, who is also the informant, the prosecution has attempted to establish the existence of an oral dying declaration. It is to be noted that dying declaration itself is not a strong piece of evidence and therefore, when it is verbal and that too, allegedly made to a close relative (in this case allegedly to the mother), evidence of mother about the oral dying declaration was to be treated with care and caution.”

The Court said that even though the FIR is not meant to be an encyclopedia containing a chronicle of all intricate and minute details, it could be used to corroborate its maker under Section 157 of the Evidence Act or to contradict its maker, viz., the informant, under Section 145 of the Evidence Act to establish whether he is a trustworthy witness or not.

“The undisputed and indisputable position obtained from the evidence on record is that the defence had brought out that neither in Ext. P12 FIR nor in Ext. D3 statement of PW8 (deceased mother) recorded under Section 161, Cr.P.C., PW8 stated about the oral dying declaration made to her by the deceased. That apart, the prosecution had failed to establish that when PW8 reached the place of occurrence the deceased was in a fit state of mind to speak or talk relevantly. Except the statement of PW8 in the Court there is no scrap of evidence in that regard in the case on hand. There can be no doubt that oral dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. In the contextual situation revealed as above, we have no hesitation to hold that the High Court was perfectly justified in considering the oral testimony of PW8 and taking serious note of the serious omission brought out from her, on being confronted with Ext. P12 FIR and Ext. D3, which is her previous statement made to police, that she had not stated anything about such an oral dying declaration made by her deceased son.”, the court said.

Thus, finding the ocular (hearsay) evidence of the deceased mother (PW 8) unreliable and not trustworthy, the court gave benefit of doubt to the accused.

Accordingly, the appeal filed by the State against the respondent's acquittal was dismissed.

Case Title: The State of Madhya Pradesh Versus Ramjan Khan & Ors.

Citation : 2024 LiveLaw (SC) 844

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Appearance:

For Appellant(s) Ms. Rukhmini Bobde, Adv. Mr. Pashupathi Nath Razdan, AOR Ms. Maitreyee Jagat Joshi, Adv. Ms. Soumya Priyadarshinee, Adv. Mr. Ankit Ambasta, Adv. Mr. Amit Srivastava, Adv. Mr. Amlaan Kumar, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Ms. Priyanka, Adv.

For Respondent(s) Mr. Lokesh Kumar Choudhary, AOR Mr. Devmani Bansal, Adv. Mr. Ajay Kumar Rai, Adv. Mr. Shubham Singh, Adv.