Doubtful Dying Declaration

 

 

 

 

By Adv. R. S. Agrawal 

 

IN THE judgement of the case- Phulel Singh v. State of Haryana, delivered on September 27, 2023, a 3-judge bench, at the Supreme Court, consisting of Justices Bhushan R. Gavai, P. Sri Narsimha and Prashant Kumar Mishra, has declared that in the totality of the circumstances, it cannot be said that the dying declaration in the case is “free from doubt”. According to the SC, the most glaring aspect, which is required to be considered is that the High Court itself has disbelieved the dying declaration insofar as that relates to Jora Singh, father-in-law of the deceased, Kiran Kaur. The present case mainly rests on the dying declaration of the deceased. No doubt, that a conviction can be solely recorded on the basis of dying declaration. However, for doing so, the court must come to a conclusion that the dying declaration is trustworthy, reliable and one which inspires confidence. In this case, the dying declaration was recorded by the PW-5, Sadhu Singh, Executive Magistrate. He stated that he obtained the certificate from the doctor regarding the fitness of the deceased to make the statement. It was stated further by him that he recorded the statement of the deceased and thereafter it was read over and explained to her. He further stated that she had thumb marked the same, after admitting its contents to be correct. In the dying declaration, the deceased is said to have state that on November 5, 1991, at around 12 noon, her husband Phulel Singh (the appellant herein), Jora Singh father-in-law and Dhan Kaur mother-in-law caught hold of her.

 

Her husband, the appellant poured kerosene on her person and set her ablaze. She had further stated that when she was set on fire, she had raised an alarm but the accused overpowered her. It is relevant to note that the deceased received burn injuries on November 5, 1991, but the dying declaration came to be recorded on November 8, 1991 after an application was made by the relatives of the deceased to the SDM, Ludhiana. PW-5,Executive Magistrate, Sadhu Singh admitted in his evidence that the boys, who had brought the application containing the order of the SDM, Ludhiana, had told him that the statement of the deceased should be recorded and that she was in a position to make the statement. Sadhu Singh had admitted further that those boys had told him that whatever they had to tell the deceased, they had told her and that he should accompany them to record her statement. He had also admitted that those two-three boys were related to the deceased and some other persons were also in the room in which he recorded the statement of the deceased. It could thus be seen that there is a grave doubt as to whether the dying declaration recorded by Sadhu Singh was a voluntary one or tutored at the instance of respondent-5.

 

It is further relevant to note that the PW-8, Dr Jatinder Pal Singh, had in his deposition itself states that Sadhu Singh had recorded the dying declaration of the deceased on November 8, 1991 at 4.40 pm, whereas the opinion with regard to her fitness was given by him at 6 pm on November 8, 1991. He had further admitted that he had not mentioned in the bed-head ticket that he had attested the statement of the deceased at 4.40 pm on November 8, 1991. It is thus doubtful as to whether Dr. Jatinder Pal had really examined the deceased with regard to her fitness prior to her statement being recorded by Sadhu Singh (PW-5), the Executive Magistrate. The SC has commented that it fails to understand as to how the same dying declaration could have been made basis for conviction of the appellant when the same was disbelieved insofar as another accused is concerned. The Court has also referred to the deposition of Shri Bhagwan, ASI, Investigating Officer (PW-9). It was stated by him in his deposition that he had come to the conclusion that the present case was not a case under section 307 of IPC or section 498-A of IPC but a case under section 309 of IPC. The witness Shri Bhagwan had further stated that the higher authorities DSP Sukhdeo Singh and SHO Rajinder Singh had verified the investigations conducted by him and found the same as correct and agreed with his conclusions. During investigations, it was further revealed that the deceased was short-tempered and that accused Jora Singh was not there in the village on the fateful day and that he had gone to Rama Mandi for making purchases for Diwali.

 

So far as allegations of harassment for non-fulfillment of demand of dowry are concerned, except the vague allegation, there is nothing in evidence to support the prosecution case. In this regard, the SC has stated that it is of the “considered view” that there is no evidence to prove beyond reasonable doubt that the deceased was harassed on account of non-fulfillment of demand of dowry. Therefore, the SC’s finding is that the prosecution has not made out case under section 304-B IPC. Through the appeal in this case, the judgement and order passed by a Punjab and Haryana High Court division bench on July 24, 2009, partly allowing the criminal appeals along with criminal revision filed by the accused persons; whereby Jora Singh, father of the appellant was acquitted of the charge under section 304-B IPC and the conviction and sentence qua the appellant herein, rendered by the Nirmal Yadav, Sessions Judge, Sirsa for the offence of causing dowry death, on September 14, 1999 with sentence of RI for seven years was challenged. The marriage between the appellant and the deceased Kiran Kaur was solemnised in March, 1987 and they had two children. It is the prosecution case that the appellant used to harass the deceased on account of insufficiency of dowry. Due to harassment, eventually, she had refused to reside in the house of the appellant. In the result, the Supreme Court has allowed the appeal after quashing and setting aside the impugned judgements and orders of conviction and sentencing passed by the trial Court and the High Court in appeal.