Dying Declaration Does Not Become Inadmissible Merely Because Police Officer Recorded It : Supreme Court

The Supreme Court observed that dying declaration does not become inadmissible merely because it was recorded by police personnel.

Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone, the bench of Justices DY Chandrachud and Hima Kohli said.

The court added that the issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case.

The prosecution case against the accused was that he raped the victim and later poured kerosene on her and set her on fire with a matchstick and ran away. One vctim's family (along with the villager) extinguished the fire and took her to a Hospital. The station in-charge received information regarding the incident and reached the hospital where he recorded the victim's 'fard beyan' on the same day. In her statement, she narrated the incident as described in paragraph 2 above. The Trial Court convicted the accused under Sections 302, 341, 376 and 448 of the IPC. Later the High Court allowed the appeal and acquitted the accused.

In appeal, the Apex Court bench noted that the statement of the deceased indicates that she sustained the burn injuries as a result of the accused having poured kerosene on her and setting her on fire and that the accused raped her before setting her on fire – this is a description of the circumstances of the transaction which resulted in her death, the bench said.

On the issue whether the statement made to police officer was admissible, the bench said:

There is no rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a Magistrate.Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case...The fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value.

Referring to evidence on record, the bench said that it is satisfied that the dying declaration was made voluntarily and is true. The Court thus restored the conviction of the accused.

Case details

State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai | 2022 LiveLaw (SC) 890 | CrA 1441 of 2022 | 31 October 2022 | Justices DY Chandrachud and Hima Kohli

Headnotes

Two Finger Test - The "two-finger test" or pre vaginum test must not be conducted - It has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity - It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active - Referred to Lillu v. State of Haryana (2013) 14 SCC 643 - Directions issued to the Union Government as well as the State Governments - Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals - Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape - Review the curriculum in medical schools with a view to ensuring that the "two-finger test" or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape - . Any person who conducts the "two-finger test" or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of these directions shall be guilty of misconduct. (Para 61-68)

Indian Evidence Act, 1872 ; Section 32 - Dying Declaration - Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case - The fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value - There is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious. (Para 41-44 , 50-52) 

Criminal Trial - Factors responsible for witnesses turning hostile - Referred to Ramesh v. State of Haryana (2017) 1 SCC 529 - Witnesses who know the deceased victim may turn hostile because they wish to move on with their lives. Testifying as to the circumstances surrounding the rape and death of a loved one can be a deeply traumatizing event, which is only compounded by the slow pace of the criminal justice system. (Para 53-54)

Indian Penal Code, 1860 ; Section 375 - Whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case. (Para 62)

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