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Court Has To Examine Scrupulously Whether the Dying Declaration Is Voluntary and Made in a Conscious State Of Mind: Allahabad High Court

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Excerpt

The present case was filed against the judgement passed by Additional Sessions Judge, whereby the appellants had convicted under section 302 read with section 34 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs. 10,000/- each with a default sentence of two months.

Facts

Zahida was married to Jakir and six children were born out of wedlock. Three months before the incident Jakir kept his illicit affair Kutti @ Alimunnisha as his wife. When Zahida protested about his illicit relation, Jakir used to beat her. One night, Jakir and Kutti set Zahida on fire using kerosene oil. Her neck was tied by a rope. Zahida’s brothers rushed to the spot when they heard her cries. She was taken to the hospital quickly with the help of neighbours. The doctor examined her and prepared a medical report. The report stated that she had 80% of burn injury. There was also a smell of kerosene on her body. A dying declaration was given by her to the executive magistrate. Zahida died during her treatment due to the burn injuries she received during the incident. The doctor conducted a post-mortem of the deceased and stated that she was brought to the hospital in a very critical condition. Both the accused were framed charges under Sections 302 r.w. Section 34 of the Indian Penal Code. The appellants denied the charges and claimed a trial.

Arguments Before the Court

The counsel for the Appellants argued that the dying declaration of the deceased was a result of prompting and tutoring because of her brother Mohd. Umar and two sisters were present at the hospital before recording the declaration. He contended that the dying declaration was not truthful, free or voluntary. He further contended that the credibility of the declaration is affected as the doctor did not ask any question to the injured whether she was in a fit state of mind and mental condition. He also argued that there were inconsistencies between the oral statements and written dying declaration. The oral statement attributed the active role to both the Appellants in the incident, whereas, the written dying declaration attributed the active role of the appellant, Jakir Ali, alone. Lastly, the counsel contended that the FIR was lodged only after 15 hours of an unexplained delay. The appellants had been falsely implicated due to the enmity of the second marriage of the appellants. 

The counsel for the Respondent submitted that the executive magistrate recorded the dying declaration of the deceased in the presence of a doctor after obtaining a certificate concerning the fit state of mind and condition of the victim. He argued that there was no inconsistency between the oral dying declaration and the written dying declaration of the deceased. Both the appellants carried out the incident in a planned manner when the deceased was sleeping with her two young children on the roof of the house. The Appellants tied her neck with a rope to stop her from making noise and poured the kerosene oil to burn her while she was sleeping and they fled away. Mohd. Salim who is the neighbour and brother of the victim witnessed the Appellants running away. 

Court’s Observation

It had been emphasised in various judgments by the Apex Court that Section 32(1) of the Evidence Act attaches special sanctity to a dying declaration and unless such dying declaration can be shown to be unreliable, it will not affect its admissibility. In the present case, the court observed that the dying declaration has been properly proved. The deceased gave a clear dying declaration that the deceased’s husband came at 1:30 a.m. when she was sleeping on the roof of the two-storeyed house, her two children were also sleeping on the adjacent cot and four other children slept on the ground floor. Her husband poured kerosene oil over her body. Her husband Jakir, and Kutti carried out the incident and both of them are guilty. Upon making her cries, both of them fled away leaving her alone. Her children and other villagers came and saved her. It is a case of a homicidal death and there is no inconsistency between the oral and written declarations.

Court’s Decision

After analysing the evidence and contentions it was considered that the trial court rightly found the dying declaration, truthful and trustworthy. The findings of the trial court were based on proper appreciation of the evidence. The injuries on the body of the deceased fully support the prosecution’s case. The High court affirmed the conviction and awarded the sentence to the Appellants and held them guilty for an offence punishable under Section 302 read with Section 34 I.P.C. 


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