No Need To Corroborate Dying Declaration If Given In A Fit State Of Mind: Calcutta High Court

A division bench of Calcutta High Court, consisting Justice Debangsu Basak and Justice Bibhas Ranjan De, reiterated that a dying declaration is a conclusive piece of evidence, admissible for the conviction of the accused, wherein corroboration is not mandatory when the deceased is in a 'fit state of mind' while giving the declaratory statement. Therefore, the court elaborated that conviction could be made solely on the basis of a dying declaration. Corroboration is not an absolute principle of law; it is merely a rule of prudence. Further, it was stated that other pieces of evidence put forward would not be discarded due to lacunas in the investigation report and an unmerited acquittal will not be granted solely on the basis of a lapse in part of the prosecution when the complete record of evidence is against the accused.

The prosecution case filed under sections 498-A and 302 of IPC mentioned that the accused repeatedly had quarrels with wife where he used to her and in the last events of quarrelling, set her ablaze after pouring kerosene oil on her in the house where they resided. The deceased and accused were married in the year 2003. The accused suspected his wife and used to beat her for the same reason. The married couple had a daughter aged about 2 years from their wedlock. The trial court found no fault in the prosecution's case and convicted the accused for the offences punishable under sections 498-A and 302 of IPC based on the dying declaration made by the deceased, testimonies and evidences procured during the investigation. An appeal was made by the appellant i.e., the accused before this court for acquittal, the impugned trial court judgement was not interfered with. Accused was found guilty of his wife's death caused by burn injuries inflicted by the accused after pouring kerosene oil and setting her ablaze.

Mr. Aniruddha Bhattacharya, the counsel on behalf of the appellant grounded his submissions on possibility of suicide which was corroborated by a number of prosecution witnesses, failure of the Investigating Officer to seize the articles according to procedure prescribed thereof. Further the counsel asserted, relying on Atbir vs Government of NCT of Delhi, that the trial judge had convicted the accused based solely on the cryptic dying declaration, which was alleged to have been made to the doctor attending the deceased without certifying the fit state of mind of the deceased at the time of giving dying declaration. Mr. Bhattacharya, in course of his argument, has contended that factum of alleged torture cannot be believed in absence of any specific date, time or place. He has further submitted that none of the witnesses ever reported to Police regarding alleged torture.

While the counsel appearing for the State, Advocate Sanjay Bardhan had put heavy reliance on the clinical notes portraying the cause of injury. He further submitted that the impugned judgement of conviction of the accused is free from infirmity and illegality and prayed for non-interference by the appellate court.

In the context of section 498-A, the Court first looked into the interpretation of the term "husband" and "wife" as it was pleaded that the deceased is not the legally wedded wife of the accused as his first marriage was not dissolved yet. The bench, relying upon Reema Aggarwal vs Anupam remarked:

Thus it is not disputed that both the appellant and victim were married and residing together as husband and wife. On the contention of the defence regarding absence of any specific date, time or place, the Court, after analysing the oral evidences of relatives and neighbours together with written complaint, found that the deceased was being continuously tortured by her husband i.e. the appellant.

On establishing matter in the section 302, heavy reliance was placed on the dying declaration of the deceased before medical examiner of Balurghat Hospital. While exhibiting reasons on including the dying declaration to be the conclusive evidence for conviction to the present matter, the court relied on in Atbir v. Government of NCT of Delhi, wherein the following parameters were enlisted for considering dying declaration by the Apex Court:

22. The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

The division bench after carefully considering the statements of medical examiner recording the statement and the Post-Mortem Doctor, concluded that at the time of giving statement before the doctor, the deceased was conscious. This conclusion was also backed by the fact that such statement was corroborated by the witnesses before whom deceased made same statement while she was being shifted to Hospital by car.

Thus, the Court, while upholding the conviction of the accused person on the basis of the above mentioned case and after carefully examining the material facts and circumstances, held that though there was infirmity found in the investigation, the same would not affect the other evidences adduced as those will be scrutinized independently.

Case Title: Ganesh Mali Vs The State of West Bengal

Citation: 2022 LiveLaw (Cal) 290 

Click Here To Read/Download Judgment