Conviction Can be Solely Based Upon Dying Declaration Without Corroboration: Supreme Court

The Supreme Court observed that there can be a conviction solely based upon the dying declaration without corroboration.

"If the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration", the bench comprising Justices MR Shah and BV Nagarathna observed.

The court observed thus while restoring the conviction of the murder accused recorded by the Trial Court. 

In this case, the Trial Court, to convict the accused relied on the dying declaration recorded by the Magistrate and also held that the defence put forth on behalf of the accused that the deceased herself poured the kerosene on her is not believable considering the medical evidence on record. The High Court, refusing to rely on the dying declaration, acquitted the accused.

In appeal, the Apex Court noted that there are two dying declarations, one recorded by the Police Officer on 20.12.2011 and another recorded by the Magistrate/SDM recorded on 22.12.2011. The bench noted that the High Court has not believed the dying declaration recorded by the Magistrate/SDM on 22.12.2011 mainly on the ground that when the dying declaration was already recorded by the Police Officer on 20.12.2011, there was no reason to record the second dying declaration.

"However, it is required to be noted that what was recorded by the Police Officer on 20.12.2011 was the statement under Section 161 Cr.PC. Therefore, it was thought fit to record the dying declaration of the deceased by the Magistrate and that is why SDM was called to record the dying declaration of deceased on 22.12.2011", the court noted.

The court further noticed that in the statement of dying declaration recorded by the Magistrate, the accused are specifically named and it is specifically stated that they poured kerosene on her.

"Nothing is on record with regard to any allegation against the Magistrate/SDM to the effect that he was biased or interested in recording the dying declaration against the accused. He was summoned during the course of investigation and during the course of investigation he recorded the dying declaration and the statement of deceased. Even the High Court as such has not doubted the credibility of the dying declaration recorded by the Magistrate/SDM on the ground of malice. The reasoning given by the High Court to not rely upon the dying declaration recorded by the Magistrate/SDM is not germane and cannot be accepted. We see no reason to doubt the dying declaration recorded by the Magistrate on 22.12.2011 in which the deceased specifically stated that at 11:00 am due to the feud over demanding money, respondents – accused have burned her after pouring kerosene over her. ", the court said.

The bench then considered the question whether in absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only ? Referring to Paniben (Smt) V. State of Gujarat, (1992) 2 SCC 474. the bench observed:

"In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration."

The court noted that in Kushal Rao V. State of Bombay, AIR 1958 SC 22:1958 SCR 552, the Supreme Court has laid down the following principles as to the circumstances under which a dying declaration may be accepted, without corroboration:

(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

(2) that each case must be determined on its own facts keeping in view  the circumstances in which the dying declaration was made;

(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

(5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and

(6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

The court noted that, even in the statement recorded under section 161 of the Cr.PC, the deceased has stated that her father in­ law had attacked her with a stick with an intention to kill her and as a result, she locked herself in the room and set herself ablaze. The statements made by the deceased in her dying declaration are consistent with medical evidence which reveals that there were burns on all parts of the body except chest and sides of the abdomen and back, the bench observed while allowing appeal.

Therefore, the accused were held guilty for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and a fine of Rs.10,000/­ each.

Case name: State of U.P. vs Veerpal

Citation: 2022 LiveLaw (SC) 111

Case no./date: CrA 34 OF 2022 | 1 Feb 2022

Coram: Justices MR Shah and BV Nagarathna

Counsel: Adv Garima Prashad for appellant, Adv P.S. Khurana for respondent

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