Parbin Ali and Another vs. State of Assam, Criminal Appeal No. 1037 of 2008, Decided on 7th January, 2013
Prosecution relied on oral dying declaration. The Hon’ble Supreme Court on the fact of the case held:
“The final opinion of the doctor is that the death was caused due to shock and haemorrhage as a result of the ante mortem injuries in the abdomen caused by sharp weapon and homicidal in nature. The said opinion was not challenged either before the trial Judge or before the High Court. We may fruitfully note here that the said witness has not been at all cross-examined. Whether such a person receiving certain injuries would be in a position to speak or not has not been brought out any where in the evidence”.
“…this Court had laid down that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration”.[Para 17]
The Court also noted the following case laws:
Khushal Rao v. State of Bombay AIR 1958 SC 22, Kusa v. State of Orissa AIR 1980 SC 559 and in Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182, it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence
Ranjit Singh v. State of Punjab 4 (2006) 13 SCC 130, it has been held that the conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts, in arriving at the judgment of conviction, shall look for some corroborating evidence.
Nanhau Ram v. State of M.P. 1988 Supp SCC 152 wherein it has been stated that normally, the court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
Laxman v. State of Maharashtra (2002) 6 SCC 710, has laid down
“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.”
Puran Chand v. State of Haryana (2010) 6 SCC 566 wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that the law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.
Prakash and another v. State of Madhya Pradesh (1992) 4 SCC 225 wherein it has been held as follows: -
“In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instance case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with.”
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