Conviction Can't Be Made Based On Dying Declaration Where Scribe/Translator Was Not Examined By Prosecution: Allahabad High Court

The Allahabad High Court has held that the dying declaration of the deceased cannot be taken as the sole evidence for convicting accused in absence of any examination of the scribe who had taken down the statement as it prejudiced the rights of the accused.

Setting aside the conviction order, the bench of Justice Ashwani Kumar Mishra and Justice Dr. Gautam Chowdhary held that since the scribe had translated the version given by the deceased in her local dialect, it was necessary for him to be produced as witness to cross-examine the scribe as to the exact statements made by the deceased.

The following reasons were given by the Court for rejecting the dying declaration:

“(i) it had been written by a person, who has not been produced, (ii) no explanation is furnished for his non-production, (iii) dying declaration contains the translated version of the statement made in the local dialect, and therefore, unless the scribe is produced, it would be impossible for the defence to enquire from him as to what exact statement was given by the victim, (iv) Non-production of scribe, in the facts of the present case, has actually caused prejudice to the accused appellants. Their rights to make necessary questions from the scribe have adversely affected the defence (v) Presence of relatives near the injured at the time of recording her statement may indicate influence on the victim and possibility of tutoring in such circumstances cannot be ruled out.”

Case Background

Appellants challenged the order of the Sessions Judge, Bhadohi-Gyanpur by which they were convicted and sentenced to life imprisonment along with fine of Rs.50,000/- each under Section 304 read with Section 34 IPC.

Deceased was allegedly set ablaze to death on 18.10.2017 and died on 20.10.2017. FIR was lodged and the accused were convicted. In the trial, reliance was placed on the dying declaration of the deceased as well as other evidences. PW-7, Tehsildar, proved the dying declaration by the deceased and stated in his examination-in-chief that before recording the dying declaration, the doctor had certified that the deceased was in fit state of mind to make a statement. The applicants were implicated by the deceased in her dying declaration.

The Court observed that the in the cross-examination, PW-7 had not mentioned the time at which the dying declaration was recorded and no certificate of the doctor was produced which certified that even after recording of the dying declaration the deceased was in fit state of mind to make a statement.

It was observed that even the Magistrate admitted to the fact though there was requirement of obtaining certificate before and after recording of the statement of the deceased, the same was not complied with. The Magistrate had further stated that his satisfaction had not been recorded regarding the statements being recorded were made by the deceased or based on signs given by her.

The defence/appellants set up a case stating that the deceased had committed suicide since her husband could not take her to Delhi due to lack of resources. The same was supported by the husband of the deceased and his family members.

It was observed that the doctor in his examination had stated that the deceased suffered 80-90% burns and was not able to speak properly. Further, it was stated that the deceased may not have been in a fit state of mind to give a statement. It was observed that the doctor was never cross-examined and no evidence contradicting him was ever produced before the Trial Court.

Accordingly, it was pleaded by the appellants that the conviction solely based on the dying declaration was impermissible in law as no other prosecution witnesses provided evidence for conviction.

High Court Verdict

The Court observed that at the time of the incident the husband of the deceased was in Delhi and thus away from the place of the incident and no eye witnesses had seen the incident to implicate the accused. It was observed that there was no other injury on the body of the deceased except the 80-90% burn injury.

The Court observed that PW-7, though proved the dying declaration, had admitted to not having scribed the same and the person who scribed it was never examined by the prosecution.

In Panchanand Mandal alias Pachan Mandal and another Vs. State of Jharkhand, the Supreme Court observed that the non-appearance of the person who scribed the dying declaration prejudices the rights of the accused as they do not get to cross-examine the scribe.

Further, the Court observed that in Govind Narain and others Vs. State of Rajasthan and others, the Apex Court discarded the dying declaration since the scribe was not examined by the Prosecution.

The Court observed that PW-7 had admitted that due to the rustic dialect of the deceased the exact words spoken by her were not recorded and the scribe who acted as the translator was never examined as a witness.

“What is on record is the translated text of the original statement by the scribe, who is not produced. There is absolutely no explanation offered by the prosecution as to why the scribe has not been produced, particularly when the version of the deceased was translated by him.”

Further, the Court observed that since the dying declaration was recorded in the presence of the family members, it could not be called voluntary as there was a possibility of tutoring by the family members.

Accordingly, the Court held that the dying declaration could not be solely relied on for convicting the accused/ appellants as there was no other evidence corroborating the allegations beyond reasonable doubt. Observing that the accused were entitled to benefit of doubt, the Court set aside the conviction order.

Case Title: Sintu And Another v. State of U.P. [CRIMINAL APPEAL No. - 2410 of 2020]

Counsel for Appellant : Rajeev Goswami ,Utkarsh Birla

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