Administering Of Oath To Deceased Before Recording Dying Declaration Doesn't Render It Invalid: Allahabad HC [Read Order]

Bench of Justice Pritinker Diwaker and Justice Ali Zamin was hearing appeal arising out of impugned judgment and order passed by the Additional Sessions Judge, Budaun, convicting the appellants under Section 302/34 of Indian Penal Code and sentencing them to rigorous imprisonment for life.

Background

Deceased Radhey Shyam Maheshwari was a practising lawyer and was also an active politician. He was also a Secretary of District Level Committee of Congress Party. Deceased accused Chob Singh was earlier a Block President of Congress Party and looking to his anti party activities, he was expelled from the party and since then he was having inimical relation with the deceased.

On 19.4.2004, when the deceased was going to the house of Advocate, Rajendra Pal Gupta in relation to some political activities, at about 8:15 am, present appellants and the deceased accused Chob Singh apprehended him and at that time accused Dharm Pal was having an iron rod with him, whereas the other three accused persons were carrying country made pistols.

The first blow was given by Dharm Pal with the said rod and then the deceased accused Chob Singh exhorted for killing the deceased and then the remaining accused persons caused firearm injuries to the deceased.

Decision

Court held that the trial judge was justified in convicting the appellants under Section 302/34 of the Indian Penal Code. Dismissing the appeal, it said that appeal lacks substance. It found no substance in the argument of the defence that as the physical condition of the deceased was bad; he was not in a position to make any such dying declaration. Court said that it found no substance in the argument of the defence that injuries found on the body of the deceased could have been caused to him while he was being shifted to various hospitals.

"The fact remains that the deceased suffered gunshot injuries and his medical and postmortem report support the prosecution case. We further find no substance in the argument of the defence that when the deceased himself was present in the police station at the time of lodging the FIR by Rakesh Kumar Maheshwari , FIR ought to have been registered at the dictate of the deceased. If FIR has been recorded at the instance of PW-1, no fault can be attributed to the prosecution."

Court relied on many judgments of the Supreme Court to reach at a conclusion including recent one of State of Gujarat v. Jayrajbhai Punjabhai Varu (2016) 14 SCC, wherein apex court while considering the subject matter of dying declaration had observed:

"The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trial in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned."

Reliance was also placed on decision of Supreme Court in P. Mani v State of Tamilnadu (2006) 3 SCC, wherein court had held that the conviction can be based solely on the basis of dying declaration alone, but the same must be wholly reliable and trustworthy.

Appellants were represented by advocate Arvind Kumar Srivastava and Respondent by AGA Amit Sinha in the case.

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