National
Magistrate's presence not a must for dying declaration
Legal Correspondent
Thursday, Sep 28, 2006
http://www.hindu.com/2006/09/28/stories/2006092803961300.htm
| Law does not provide that it be made in a prescribed manner: court |
New Delhi: A dying declaration by a victim, though not made in the presence of a magistrate, is valid evidence and cannot be discarded, the Supreme Court has held.
A Bench consisting of Justices S.B. Sinha and Dalveer Bhandari said: "The law does not provide that a dying declaration be made in any prescribed manner or in the form of questions and answers. Only because a magistrate did not record a dying declaration, the same, by itself, may not be a ground to disbelieve the entire prosecution case. When a statement of an injured is recorded, in the event of his or her death, the same may also be treated as a first information report."
However, a "dying declaration must be voluntary. It should not be tutored. It is admissible in evidence in special circumstances. But it must be borne in mind that its admissibility is statutorily recognised in terms of Section 32 of the Indian Evidence Act. The effect of the statement being not recorded before a magistrate would depend upon the facts and circumstances of each case and no hard and fast rule can be laid down therefor."
Writing the judgment, Justice Sinha said: "If, however, wholly inconsistent or contradictory statements are made or if it appears from records that the dying declaration is not reliable, a question may arise why the magistrate was not called in, but ordinarily the same may not be insisted upon."
Two declarations
In this case, the prosecution said Amarjit Kaur died of burns after her husband Balbir Singh and mother-in-law poured kerosene on her and set her ablaze.
She gave two dying declarations, one before doctors soon after admission to hospital and the second before the investigating officer after the FIR was registered.
In the first declaration, she named only her husband responsible for pouring kerosene and setting her ablaze.
In the second, Amarjit Kaur named her mother-in-law also.
The trial court awarded life imprisonment to Balbir Singh and his mother. The Punjab and Haryana High Court confirmed this sentence.
Dealing with their appeal, the apex court, while confirming the conviction and sentence against Balbir Singh, set aside the conviction and sentence against his mother in view of the inconsistencies between Kaur's two dying declarations.
However, the Bench confirmed her conviction for dowry harassment. As she had already undergone four-year imprisonment, the court directed that she be released.
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"Ours is a battle not for wealth or for power.
It is a battle for freedom. It is a battle for the reclamation of human personality."
- Dr BR Ambedkar
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