Police Officer Shouldn’t Re-record Dying Declaration If Already Recorded By Executive Magistrate: Chhattisgarh High Court

While disapproving of the way a second dying declaration was recorded by the police, a Division Bench of Justices Sanjay K. Agrawal and Radhakishan Agrawal observed,

“Since dying declaration was already recorded by the Executive Magistrate on 24-7-2012 few hours prior to recording of dehati nalishi, we fail to understand what persuaded the Head Constable to record the statement of the injured victim without having any certificate from any doctor qua her fitness and without there being any necessity to record the dying declaration once having been recorded by the competent authority authorised to record the dying declaration.”

Prosecution Case

On 19.07.2012 at about 10:00 PM, the husband of the deceased came to the house inebriated and started abusing her and allegedly tried to strangulate her. Thereafter, he poured kerosene over her body and the mother-in-law and sister-in-law of the deceased set her ablaze. She was subsequently rescued by her brother-in-law and a sister-in-law and was admitted to a hospital.

Her dying declaration was recorded by an Executive Magistrate on 24.07.2012 at 3:30 PM on the request of the investigating agency and thereafter, all of a sudden, on the same day at 4:45 PM, a separate dying declaration was recorded by a Head Constable in the form of dehati nalishi. She succumbed to her injuries on 25-7-2012.

After due investigation, the appellants were charge-sheeted and charges were framed under Sections 302 read with Sections 34 & 498A of the IPC. The trial Court, upon completion of trial, convicted and sentenced the appellants by its impugned judgment dated 27.01.2014.

Contentions of Parties

It was contended for the appellants that the first dying declaration was recorded in the presence of parents of the deceased, particularly without there being any certificate by doctor as to her mental and physical fitness.

Thus, it was contended that the deceased was under their influence. Further, it was argued that the dying declaration in form of dehati nalishi recorded by the Head Constable is a suspicious and doubtful document.

The State, on the other hand, supported the impugned judgment and submitted that the trial court is absolutely justified in convicting the appellants as the prosecution proved the offences against the appellants beyond reasonable doubt.

Court’s Observations

The Court took into consideration the evidences on record, also carefully examined the aforesaid dying declarations and formed the opinion that,

“…in absence of certification by doctor and in absence of any satisfaction recorded by the Executive Magistrate while recording the dying declaration that the deceased was mentally and physically in fit condition to make dying declaration, and presence of parents of the deceased at the time of making dying declaration especially the mother holding her and presence of police personnel at the time of making dying declaration, as possibility of her being influenced cannot be ruled out and it would be unsafe to base conviction on the dying declaration.”

The court was surprised to note that even after the first dying declaration was recorded by a legally competent authority, i.e. an Executive Magistrate, a Head Constable went to record the second dying declaration barely after an hour.

It relied upon the decision of the Apex Court in Dalip Singh & Ors. v. State of Punjab, wherein it was observed,

“The practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.”

Accordingly, the bench said that the second dying declaration recorded by the Head Constable was completely unnecessary and uncalled for in the light of the decision of the Supreme Court in Dalip Singh.

Resultantly, the appeal was allowed and the impugned judgment of conviction was set

Case Title: Sumitra Bandhe v. State of Chhattisgarh

Case No.: Criminal Appeal No. 292 of 2014

Citation: 2023 LiveLaw (Chh) 8

Counsel for the Appellants: Mr. Praveen K. Dhurandhar, Advocate

Counsel for the Respondent: Mr. Animesh Tiwari, Deputy Advocate General