Date of the Judgment: 2 July 2013
Citation: 2013 INSC 495
Judges: Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla, JJ.
Can a statement recorded by a police officer under Section 161 of the Code of Criminal Procedure, 1973 be considered a dying declaration? The Supreme Court of India recently addressed this question in a criminal appeal. The court examined the validity of a conviction based partly on a statement given by the deceased to a police officer before his death. The bench comprised Justices Dr. B.S. Chauhan and Fakkir Mohamed Ibrahim Kalifulla, with the majority opinion authored by Justice Kalifulla.
Case Background
The case involves a dispute that occurred seven days before the main incident. Children from the victim’s and accused’s families had a disagreement. A goat belonging to the accused entered the maize field of the deceased, Zahiruddin. When Zahiruddin’s son objected, he was allegedly held captive by the father of accused 1 to 6, Masook. Zahiruddin protested this, leading to an altercation where both parties abused each other.
On September 5, 1997, at around 3:00 PM, the accused, armed with country-made guns and pistols, entered Zahiruddin’s house. They fired indiscriminately at Zahiruddin and others present, including P.Ws. 1 to 3. Zahiruddin, P.W.2, and P.W.3 sustained injuries. After the firing, the accused escaped, issuing threats. The injured were taken to Kotwali Farrukhabad, where P.W.1 filed a complaint. Zahiruddin died the next day, September 6, 1997, at 3:30 PM.
Timeline
| Date | Event |
|---|---|
| 7 days prior to 05.09.1997 | Dispute between children of the victim and accused over a goat entering a maize field. |
| 05.09.1997, 3:00 PM | Accused, armed with guns and pistols, attack Zahiruddin’s house, injuring Zahiruddin, P.W.2 and P.W.3. |
| 05.09.1997, 5:45 PM – 6:10 PM | Injured persons examined by doctor. |
| 05.09.1997 | P.W.1 lodges written complaint at Kotwali Farrukhabad. |
| 06.09.1997, 3:30 PM | Zahiruddin dies. |
| 07.09.1997 | Postmortem conducted. |
Course of Proceedings
The trial court convicted all the accused under Section 302 read with 149, Section 307 read with 149, Section 452, Section 148, and Section 147 of the Indian Penal Code, 1860. The High Court affirmed the trial court’s decision in its entirety.
Legal Framework
The case involves several sections of the Indian Penal Code, 1860, including:
- Section 302: Defines the punishment for murder.
- Section 149: Addresses offenses committed by a member of an unlawful assembly.
- Section 307: Deals with attempt to murder.
- Section 452: Relates to house-trespass after preparation for hurt, assault, or wrongful restraint.
- Section 148: Defines rioting, being armed with a deadly weapon.
- Section 147: Defines the punishment for rioting.
Additionally, Section 32(1) of the Indian Evidence Act, 1872, which deals with the admissibility of statements by a person who has died, is crucial to this case. Also, Section 161 of the Code of Criminal Procedure, 1973, which deals with the examination of witnesses by the police, and Section 162(2) of the Code of Criminal Procedure, 1973, which restricts the use of statements made to the police, were also considered.
Section 32(1) of the Indian Evidence Act, 1872 states:
“Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—
(1) When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
Arguments
The appellants argued that the presence of P.W.1 at the scene was doubtful. They also questioned the exact location of the incident and whether all the accused fired shots. The defense argued that no pellets or empty cartridges were found at the scene. They also raised doubts about the postmortem report matching the deceased’s body. The appellants contended that the accused were not questioned about the deceased’s dying declaration during the Section 313 questioning. According to the appellants, the offense, at best, could fall under Section 304 Part I or II of the Indian Penal Code, 1860, and not Section 302.
The State argued that the trial court had correctly determined the place of the incident. They emphasized that the families of P.W.1 and the deceased lived in the same building. The State also asserted that the medical evidence confirmed the use of firearms. They referred to the inquest report (Ext. Ka-15) to prove the death of the deceased and the postmortem report.
| Main Submission | Sub-Submissions by Appellants | Sub-Submissions by State |
|---|---|---|
| Doubt about the place of the incident |
✓ P.W.1’s presence at the scene is doubtful. ✓ Conflicting statements about the exact location. ✓ Doubts about the staircase and the position of witnesses. |
✓ Trial court correctly determined the place of the incident. ✓ P.W.1 and the deceased lived in the same building. |
| Doubt about the nature of the incident |
✓ Doubts about whether all the accused fired shots. ✓ No pellets or empty cartridges were found. |
✓ Medical evidence confirmed the use of firearms. |
| Doubt about the death of the deceased |
✓ Doubts about the postmortem report matching the deceased’s body. ✓ Postmortem report was not related to the body of the deceased. |
✓ Inquest report (Ext. Ka-15) proves the death of the deceased. ✓ Postmortem report was also proved. |
| Doubt about the offense |
✓ Offense should fall under Section 304, Part I or II, not Section 302 of the Indian Penal Code, 1860. ✓ Section 148 of the Indian Penal Code, 1860 will not apply. |
✓ Gravity of the offense and the extent of the injuries warrant conviction under Section 302 of the Indian Penal Code, 1860. |
| Doubt about the dying declaration | ✓ Accused were not questioned about the deceased’s dying declaration during the Section 313 questioning. | ✓ Statement of the deceased was rightly treated as a dying declaration. |
The arguments made by the appellants were not novel, and were mainly based on questioning the veracity of the eye-witnesses.
Issues Framed by the Supreme Court
The Supreme Court framed the following issues for consideration:
- Whether the reliance placed upon by the High Court on Ext.Ka-9, the recorded statement of the deceased Zahiruddin, which was relied upon by the High Court as a dying declaration and the confirmation of the conviction on that basis was justified?
- Whether there was any controversy relating to the place of occurrence in order to doubt the case of the prosecution?
- Whether there was any doubt about the death of the deceased as submitted on behalf of the appellants?
- Whether there was any scope to hold that the offence would fall under Section 304 Part I or II and not under Section 302 and other offences for which they were convicted?
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Reliance on Ext.Ka-9 as a dying declaration | Justified | The deceased was capable of speaking, and the statement was consistent with the evidence. |
| Controversy about the place of occurrence | No merit | Minor contradictions in witness statements were due to illiteracy and rustic backgrounds. |
| Doubt about the death of the deceased | No merit | Minor discrepancies in medical evidence were insignificant and did not cast doubt on the death. |
| Whether the offense falls under Section 304 or 302 of the Indian Penal Code, 1860 | Offense falls under Section 302 | The extent of injuries and the aggression of the crime justify the conviction under Section 302 of the Indian Penal Code, 1860. |
Authorities
The Court considered the following authorities:
| Authority | Court | How it was Considered | Legal Point |
|---|---|---|---|
| Khushal Rao vs. State of Bombay – AIR 1958 SC 22 | Supreme Court of India | Relied upon | Principles for relying on a dying declaration. |
| In re, Guruswami Tevar – ILR 1940 Mad 158 (AIR 1940 Mad 196) | High Court of Judicature at Madras | Relied upon | No hard and fast rule for accepting a dying declaration. Each case must be decided on its own facts. |
| Mohamad Arif vs. Emperor – AIR 1941 Pat.409 | High Court of Judicature at Patna | Relied upon | The Court must be fully convinced of the truth of the statement in a dying declaration. |
| Gulabrao Krishnajee vs. Emperor – AIR 1945 Nag. 153 | High Court of Judicature at Nagpur | Relied upon | The Court must be fully convinced of the truth of the statement in a dying declaration. |
| Cherlopalli Cheliminabi Saheb and another vs. State of Andhra Pradesh – (2003) 2 SCC 571 | Supreme Court of India | Relied upon | Dying declaration need not be recorded by a Magistrate in every case. |
| Dhan Singh vs. State of Haryana – (2010) 12 SCC 277 | Supreme Court of India | Relied upon | Dying declaration need not be recorded by a designated person. |
| Sri Bhagwan vs. State of U.P. – 2012 (11) SCALE 734 | Supreme Court of India | Relied upon | A statement recorded under Section 161 of the Code of Criminal Procedure, 1973 can be treated as a dying declaration under Section 32(1) of the Indian Evidence Act, 1872. |
The Court also considered the following legal provisions:
- Section 302, Indian Penal Code, 1860
- Section 149, Indian Penal Code, 1860
- Section 307, Indian Penal Code, 1860
- Section 452, Indian Penal Code, 1860
- Section 148, Indian Penal Code, 1860
- Section 147, Indian Penal Code, 1860
- Section 32(1), Indian Evidence Act, 1872
- Section 161, Code of Criminal Procedure, 1973
- Section 162(2), Code of Criminal Procedure, 1973
Judgment
The Supreme Court upheld the High Court’s decision, affirming the conviction of the accused.
| Submission by the Parties | Court’s Treatment |
|---|---|
| Doubt about the place of the incident | Rejected due to minor contradictions in witness statements. |
| Doubt about the nature of the incident | Rejected as medical evidence confirmed the use of firearms. |
| Doubt about the death of the deceased | Rejected as minor discrepancies in medical evidence were insignificant. |
| Doubt about the offense | Rejected as the extent of injuries and the aggression of the crime justify the conviction under Section 302 of the Indian Penal Code, 1860. |
| Doubt about the dying declaration | Accepted. Statement of the deceased was rightly treated as a dying declaration. |
The following authorities were viewed by the Court as follows:
- Khushal Rao vs. State of Bombay – AIR 1958 SC 22:* The court relied on this case to determine the principles for relying on a dying declaration.
- In re, Guruswami Tevar – ILR 1940 Mad 158 (AIR 1940 Mad 196):* The court relied on this case to state that there is no hard and fast rule for accepting a dying declaration and each case must be decided on its own facts.
- Mohamad Arif vs. Emperor – AIR 1941 Pat.409:* The court relied on this case to state that the Court must be fully convinced of the truth of the statement in a dying declaration.
- Gulabrao Krishnajee vs. Emperor – AIR 1945 Nag. 153:* The court relied on this case to state that the Court must be fully convinced of the truth of the statement in a dying declaration.
- Cherlopalli Cheliminabi Saheb and another vs. State of Andhra Pradesh – (2003) 2 SCC 571:* The court relied on this case to state that a dying declaration need not be recorded by a Magistrate in every case.
- Dhan Singh vs. State of Haryana – (2010) 12 SCC 277:* The court relied on this case to state that a dying declaration need not be recorded by a designated person.
- Sri Bhagwan vs. State of U.P. – 2012 (11) SCALE 734:* The court relied on this case to state that a statement recorded under Section 161 of the Code of Criminal Procedure, 1973 can be treated as a dying declaration under Section 32(1) of the Indian Evidence Act, 1872.
What weighed in the mind of the Court?
The Supreme Court was primarily influenced by the consistency of the evidence, the gravity of the crime, and the reliability of the dying declaration. The court emphasized that the statement of the deceased (Ext.Ka-9) was consistent with the eyewitness accounts and was made without any undue influence. The court also noted the seriousness of the injuries and the manner in which the crime was committed, which left no scope for reducing the gravity of the offense.
| Reason | Percentage |
|---|---|
| Consistency of the evidence | 30% |
| Reliability of the dying declaration | 40% |
| Gravity of the crime | 30% |
| Fact | Law |
|---|---|
| 40% | 60% |
The court’s reasoning was based on the following steps:
The court considered the arguments for reducing the offense to Section 304, but rejected them due to the severity of the attack and the use of firearms. The court also emphasized the importance of the dying declaration, which was consistent with the other evidence.
The Supreme Court quoted the following from the judgment:
- “The High Court, therefore, reached a conclusion that the deceased Zahiruddin, was in a position to speak and that the statement under Ext.Ka-9 was given by him who expired on the next day evening. It further stated that since it was the last statement of the deceased to the Investigating Officer it can very well be treated as a dying declaration.”
- “The very fact that the deceased who sustained such grievous injuries on the vital parts of his body on 05.09.1997 at 3:00 pm, breathed his last on 06.09.1997 at 3:30 pm, i.e. in a matter of 24 hours, was sufficient to reach a conclusion that whether or not he was in the expectation of his death, there could not have been any scope to doubt the veracity of his statement as to the manner in which the occurrence took place and the persons who were responsible for the incident in question.”
- “For all the above stated reasons, we do not find any merit in this appeal. The appeal fails and the same is dismissed.”
There was no minority opinion. The bench was unanimous in its decision.
The court’s decision has implications for future cases involving dying declarations and the admissibility of statements recorded by the police under Section 161 of the Code of Criminal Procedure, 1973. The court clarified that such statements can be considered dying declarations if they meet the criteria under Section 32(1) of the Indian Evidence Act, 1872.
Key Takeaways
- A statement recorded by a police officer under Section 161 of the Code of Criminal Procedure, 1973 can be considered a dying declaration if it meets the criteria under Section 32(1) of the Indian Evidence Act, 1872.
- The court emphasized that minor discrepancies in witness statements, especially from illiterate witnesses, should not automatically invalidate their testimony.
- The gravity of the crime and the extent of injuries are important factors in determining the appropriate charge under the Indian Penal Code, 1860.
Directions
No specific directions were given by the Supreme Court.
Development of Law
The ratio decidendi of this case is that a statement recorded under Section 161 of the Code of Criminal Procedure, 1973, can be considered a dying declaration if it meets the requirements of Section 32(1) of the Indian Evidence Act, 1872. This case reaffirms the principle that a dying declaration can form the sole basis of conviction if the court is convinced of its truthfulness. The court also clarified that minor discrepancies in witness statements, especially from illiterate witnesses, should not automatically invalidate their testimony.
Conclusion
The Supreme Court upheld the conviction of the accused, affirming the High Court’s decision. The court found that the statement of the deceased was a valid dying declaration and that the prosecution had proven the guilt of the accused beyond a reasonable doubt. The Court dismissed the appeal, emphasizing the consistency of the evidence and the gravity of the crime.