Wednesday, 16 September 2015

Basic principles for admissibility of dying declaration

            

      On bare perusal of Section 32(1) of the Evidence Act,   it  is  clear

      that the statement as to death must be made by the person himself  and
      if any discrepancy arises, the same cannot be relied upon. This  Court
      in Atbir v. Government  of  NCT  of  Delhi  [1]   has  summarized  the
      principles laid down earlier,  as under:
           “(i) Dying declaration can be the sole basis of conviction if it
           inspires the full confidence of the court.

           (ii) The court should be satisfied that the deceased  was  in  a
           fit state of mind at the time of making the statement  and  that
           it was not the result of tutoring, prompting or imagination.


           (iii) Where the court is satisfied that the declaration is  true
           and voluntary, it can base its conviction  without  any  further
           corroboration.

           (iv) It cannot be laid down as an absolute rule of law that  the
           dying declaration cannot  form  the  sole  basis  of  conviction
           unless it is corroborated. The rule requiring  corroboration  is
           merely a rule of prudence.

           (v) Where the dying declaration is suspicious, it should not  be
           acted upon without corroborative evidence.


           (vi) A dying declaration which suffers from  infirmity  such  as
           the deceased was unconscious and could never make any  statement
           cannot form the basis of conviction.

           (vii) Merely because a dying declaration does  not  contain  all
           the details as to the occurrence, it is not to be rejected.

           (viii) Even if it  is  a  brief  statement,  it  is  not  to  be
           discarded.

           (ix) When the eyewitness affirms that the deceased was not in  a
           fit and conscious state to make the dying  declaration,  medical
           opinion cannot prevail.


           (x) If after careful scrutiny, the court is satisfied that it is
           true and free from any effort to induce the deceased to  make  a
           false statement and if it  is  coherent  and  consistent,  there
           shall be no legal impediment to make it the basis of conviction,
           even if there is no corroboration.”


                                                      REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 951  OF 2007
      STATE (GOVERNMENT OF NCT OF DELHI)     ……    APPELLANT
                                   VERSUS
      NITIN GUNWANT SHAH                           ……   RESPONDENT
                                    WITH


                      CRIMINAL APPEAL NO. 952  OF 2007


      STATE (GOVERNMENT OF NCT OF DELHI)     ……    APPELLANT
                                   VERSUS
      OM PRAKASH SRIVASTAVA @ BABLOO         ……    RESPONDENT
Dated;  September 16, 2015.




                                
      Pinaki Chandra Ghose, J.
   1. These appeals, by  special  leave,  have  been  directed  against  the
      judgment and order dated February 22, 2007 passed by the High Court of
      Delhi at New Delhi in Criminal Appeal                Nos.519/2006  and
       527/2006, whereby the High Court allowed the criminal  appeals  filed
      by the respondents herein and acquitted both of them.


   2. The facts giving rise to these appeals, briefly stated,  are  that  in
      the morning of August 2, 1992, when one Lalit Suneja was returning  to
      his house after offering prayers to God,  he  was  shot  dead  by  two
      unknown persons near to his house. A neighbour,  namely  Nerendra  Pal
      Naresh, who happened to pass through that street,  set  the  law  into
      motion by informing the police. FIR No.258/1992 was registered by  the
      said Nerendra Pal Naresh  at P.S. Shakarpur,  East  Delhi,  about  the
      incident. During investigation, the Investigating Officer came  across
      a complaint Ext. PW15/A1 lodged in the name of Lalit  Suneja  at  P.S.
      Nizamuddin, New Delhi. Investigation was thrown into the case and  the
      following story was disclosed by the prosecution:


   3. Accused Nitin Shah was carrying on his business through a  proprietary
      concern M/s. Simnit Enterprises  and  he  had  employed  Lalit  Suneja
      (deceased) as  its  distributor  in  the  Northern  Region.  Both  the
      employer and the employee were at loggerhead for sometime  on  account
      of some payment. When the matter could not be settled,  accused  Nitin
      Shah requested his friend Om Prakash Srivastava @ Babloo to  eliminate
      Lalit Suneja and assured him to provide cash likely  to  be  spent  in
      doing the act. Accused Om Prakash Srivastava intrigued with co-accused
      persons to bring the design to fruition and accordingly accused Manish
      Dixit was hired to execute the task for Rs.1,00,000/-. On 2nd  August,
      1992, accused Virender Pant @ Chhoto  (since  deceased)  took  accused
      Manish Dixit on a motor-bike Yamaha bearing   No.DL-1SD-4680,  to  the
      spot.  Accused Manish Dixit shot dead Lalit Suneja  and fled away from
      the spot on the  same  motor-bike  described  above  being  driven  by
      accused Virender Pant and reached to co-accused Manjeet Singh who  was
      waiting for them in a car bearing No.DL-1CB-7874, at Yamuna Pusta near
      Bank Enclave. They exchanged their vehicles and rushed to  accused  Om
      Prakash Srivastava and returned him the motor bike and pistol used  in
      the crime. Accused Om Prakash Srivastava paid Rs.50,000/- to  each  of
      the accused Virender Pant and  Manjeet  Singh  for  driving  aforesaid
      motor-bike and car, in order to facilitate  accused  Manish  Dixit  in
      killing the deceased.


   4. Police filed challan against accused Manish Dixit and Manjeet Singh on
      27th October, 1992. The names of accused  Virender  Pant,  Om  Prakash
      Srivastava and Nitin Shah found place in column No.2.  Separate charge-
      sheets were filed against accused Nitin Shah,  Virender  Pant  and  Om
      Prakash  Srivastava   on   23.1.1993,   15.03.1995   and   03.01.1996,
      respectively.


   5. After considering the material on record and hearing the  counsel  for
      the accused persons, the Trial Court  by its order dated 6th  January,
      2003 framed charges against Om  Prakash  Srivastava,  Nitin  Shah  and
      Manjeet Singh for offences punishable under Sections 302/34  and  120B
      of the Indian Penal Code, 1860 (“IPC” for  short).  The  charges  were
      read over and explained to  the  accused  persons,  they  pleaded  not
      guilty and claimed trial.  Accused Virender Pant and Manish Dixit were
      reported to have died during trial.


   6. The Trial Court by  its  judgment  and  order  dated  3rd  July,  2006
      convicted the respondents Nitin  Shah  and  Om  Prakash  Srivastava  @
      Babloo,  for the offence punishable under Section 302  IPC  read  with
      Section 120B IPC and sentenced them to undergo  rigorous  imprisonment
      for life and a fine of Rs.20,000/- each, and in default of payment  of
      fine, further  imprisonment  for  six  months  was  awarded.  However,
      Manjeet Singh was acquitted by the Trial Court. Being aggrieved by the
      aforesaid  judgment  and  order  of  the  Trial  Court,   the  accused
      respondents filed two  separate  appeals  before  the  High  Court  of
      Delhi, being Criminal Appeal Nos.519 of 2006 and 527 of 2006. The High
      Court by the impugned judgment and order allowed these appeals on  the
      ground that there was nothing on the record to show that  any  of  the
      two respondents had anything to do with the murder  of   Lalit  Suneja
      and, consequently,  both the respondents were set at liberty.


   7. The Appellant -  State  has  challenged  before  us  the  judgment  of
      acquittal passed by the High Court of Delhi. Learned Counsel  for  the
      appellant has inter alia raised the following ground in these appeals.
       Whether a complaint disclosing that the complainant  was   threatened
      to be killed in case the matter was not  settled  and  thus  demanding
      action and  security,   is  not  a  clear  manifestation  of  criminal
      conspiracy? Learned counsel appearing for the appellant has  time  and
      again based  his  contention  in  and  around  the  alleged  complaint
      Ext.PW15/A1. Also, since the whole case deals with the alleged hatched
      up conspiracy to eliminate Lalit  Suneja,  any  alleged  complaint  by
      Lalit Suneja is of prime importance.


   8. The Trial Court convicted the accused respondents on the basis of  the
      prosecution   story   revolving   around   the   aforesaid   complaint
      Ext.PW15/A1.  The High Court also dealt with the issue and  held  that
      the Trial Court itself raised question on the tampering  of  the  said
      complaint as is apparent from the overwriting done  in  numbering  the
      said complaint in the Police records, yet the Trial Court went  on  to
      rely on the said complaint. The High Court has examined at length  the
      said complaint  and reversed the finding of the Trial Court.


   9. We shall at the very onset examine the said contention. The  Complaint
      Ext.PW15/A1 is alleged to have been filed by the deceased Lalit Suneja
      in his own handwriting in Hindi and signed in  English,  addressed  to
      the SHO, Police  Station  Nizamuddin,  New  Delhi.  According  to  the
      prosecution, the said complaint forms the basis of the  case,  whereby
      the  entire  events  are  the  apprehensions  made  out  in  the  said
      complaint, turned out to be true. The High Court pointed  out  various
      discrepancies in the said complaint which are worth  considering.   As
      has been held by the High Court, the prosecution outrightly failed  to
      prove the handwriting  of  the  said  complaint.  Neither  any  expert
      evidence was examined nor any acquaintance  was  called  to  establish
      that the complaint was written  by  deceased  Lalit  Suneja.  In  this
      light, the deposition of Veena (PW1) wife of  deceased  Lalit  Suneja,
      is also perused. She denied the signature on  the  said  complaint  as
      that of her deceased husband. The handwriting also could not be proved
      as  PW1  deposed  that  she  never  saw  her   husband  writing.   The
      prosecution also failed to prove the signature by  forensic  evidence.
      Apart from the above, the said complaint is shown as Entry No.605/2 in
      Register No.12 dated 23.7.1992. On examination, the High Court rightly
      pointed out that there is overwriting which is visible  to  the  naked
      eye and apparently the original Entry 605 was changed to Entry 604A to
      insert the document Ext. PW15/A1 in Register  No.12.  This  entry  has
      also been commented by  the  Trial  Court  as  being  manipulated  and
      fabricated.




  10.  The  High  Court  pointed  out  one  another  fact  discrediting  the
      prosecution  story,  whereby  the   prosecution   alleged   that   the
      Investigating  Officer  (PW20)  was  provided  with  a  photocopy   of
      Ext.PW15/A1 by PW15.  However, in reality there was no  such  copy  in
      existence in the Police File. The assertion that  the  said  complaint
      was  handed  over  to  the  Police  Station   on   23.7.1992   remains
      uncorroborated due to lack of  contemporaneous  Police  record.  There
      exists no receipt of the said complaint on 23.7.1992 or  on  2.8.1992.
      Hence the seizure by PW20 on 4.7.1992 is highly doubtful as the  Trial
      Court and so did the High Court had concurrent finding as to tampering
      with Register No.12.


  11. The prosecution story suffers another grave lacunae  and  that  is  it
      outrightly failed to prove the surrounding circumstances. To establish
      the threat of being killed, no corroborative evidence was produced nor
      any statement of account was placed on record to prove any outstanding
      amount to be paid by deceased Lalit Suneja to respondent  Nitin  Shah.
      On the contrary, the deposition of Veena (PW1) wife of deceased  Lalit
      Suneja is important, who stated  that  she  had  never  heard  of  any
      business relationship between her husband and respondent  Nitin  Shah,
      nor she was aware of any hostility between the two.


  12. The learned counsel for the appellant placed reliance on the testimony
      of the  Police  Officer  Hanuman  Dan  (PW15)  who  alleged  that  the
      complaint Ext.PW15/A1 was endorsed by the SHO  Nizammudin  to  inquire
      into the matter. PW15 also alleged to have accompanied the deceased to
      a meeting at Jukasso Inn at        8.00 P.M. on 23.7.1992 and had also
      deputed two Constables Bir Singh and Joginder. However, on perusal  of
      the Roznamcha Register on 23.7.1992, no departure  entry  of  PW15  is
      made. Instead, a departure entry at 1.30 P.M. and return of 10.00 P.M.
      is entered. Thus, doubt is cast on the event whether any complaint  as
      Ext.PW15/A1 could have been handed over to PW15 since on that day i.e.
      23.7.1992,  he was not in the Police Station  between  1.30  P.M.  and
      10.00 P.M.


  13. Another view which excludes the prosecution story is the testimony  of
      Veena (PW1)  wife of  deceased Lalit Suneja. She not only deposed that
      the signature on the complaint Ext. PW15/A1 was not of  the  deceased,
      but she further deposed that there never existed  any  enmity  between
      Nitin Shah and her husband, or that any complaint apprehending  threat
      was filed by her husband. PW1 further deposed  that  her  husband  was
      having his  business  but  the  employer-employee  relationship  never
      existed between her deceased husband and Nitin Shah.


  14. The Trial Court relied on the two applications filed by accused  Nitin
      Shah, one under Section 340 read with Section 195 of Cr.P.C., and  the
      other under Section 317(2) of Cr.P.C.,  in reaching its judgment.  The
      High Court rightly rejected the  aforesaid  two  applications  on  the
      ground  that  the  same  were  not  proved  by  the  prosecution.  The
      prosecution was already suffering a weak case, over and above the non-
      proving of  Ext.  PW15/A1.  The  prosecution  failed  to  prove  other
      corroborative circumstances which included non-recovery of the  weapon
      used in the offence and the alleged involvement of the car and  motor-
      bike. The prosecution could not have shored its boat by merely proving
      that the accused were present in Delhi when the offence occurred.  The
      vital links in  the  prosecution  story  being  already  missing,  the
      prosecution could not prove a  chain  of  events  leading  to  a  sole
      conclusion that the accused were guilty beyond reasonable doubt.


  15. The learned counsel for the appellant has pleaded various questions of
      law which are already settled by this Court. However, in  the  present
      case, the prosecution failed to make its base. Therefore, we  find  no
      point in dealing with those issues. The prosecution should  first  and
      foremost establish the complaint to be  made  by  the  deceased  Lalit
      Suneja himself.  In light of  this  argument,  Section  32(1)  of  the
      Indian Evidence Act, 1872 is reproduced below:


           “Cases in which statement of relevant fact by person who is dead
           or cannot be found, etc., is relevant. —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.”


      On bare perusal of Section 32(1) of the Evidence Act,   it  is  clear
      that the statement as to death must be made by the person himself  and
      if any discrepancy arises, the same cannot be relied upon. This  Court
      in Atbir v. Government  of  NCT  of  Delhi  [1]   has  summarized  the
      principles laid down earlier,  as under:
           “(i) Dying declaration can be the sole basis of conviction if it
           inspires the full confidence of the court.

           (ii) The court should be satisfied that the deceased  was  in  a
           fit state of mind at the time of making the statement  and  that
           it was not the result of tutoring, prompting or imagination.


           (iii) Where the court is satisfied that the declaration is  true
           and voluntary, it can base its conviction  without  any  further
           corroboration.

           (iv) It cannot be laid down as an absolute rule of law that  the
           dying declaration cannot  form  the  sole  basis  of  conviction
           unless it is corroborated. The rule requiring  corroboration  is
           merely a rule of prudence.

           (v) Where the dying declaration is suspicious, it should not  be
           acted upon without corroborative evidence.


           (vi) A dying declaration which suffers from  infirmity  such  as
           the deceased was unconscious and could never make any  statement
           cannot form the basis of conviction.

           (vii) Merely because a dying declaration does  not  contain  all
           the details as to the occurrence, it is not to be rejected.

           (viii) Even if it  is  a  brief  statement,  it  is  not  to  be
           discarded.

           (ix) When the eyewitness affirms that the deceased was not in  a
           fit and conscious state to make the dying  declaration,  medical
           opinion cannot prevail.


           (x) If after careful scrutiny, the court is satisfied that it is
           true and free from any effort to induce the deceased to  make  a
           false statement and if it  is  coherent  and  consistent,  there
           shall be no legal impediment to make it the basis of conviction,
           even if there is no corroboration.”




      This Court  has in a catena of judgments laid down the  parameters  to
      gauge the veracity of  a  dying declaration  and  in the present case,
      the  complaint  Ext. PW15/A1 thus fails to adhere to these guidelines.

  16. The prosecution relies upon  the  existence  of  criminal  conspiracy,
      which resulted into the death of Lalit Suneja. This Court has time and
      again laid down the ingredients to be made out by the  prosecution  to
      prove criminal conspiracy. It is now, however,  well  settled  that  a
      conspiracy ordinarily is hatched in secrecy. The Court for the purpose
      of arriving at a finding as to  whether  the  said  offence  has  been
      committed or  not  may  take  into  consideration  the  circumstantial
      evidence. However, while doing so, it  must  be  borne  in  mind  that
      meeting of mind is essential; mere knowledge or discussion  would  not
      be sufficient. Yet, the prosecution has failed to prove  the  evidence
      which establishes any prior  meeting  of  mind  of  the  accused.  The
      prosecution merely proved that all the accused were present  in  Delhi
      on the date of occurrence, and that the alleged motor-bike and the car
      used in incident belonged to respondent No.2, Om Prakash Srivastava  @
      Babloo.  The High  Court  rightly  dismissed  this  argument,  as  the
      involvement of the said vehicles in commission of the crime were never
      proved. Neither any prior meeting of mind of the accused  was  proved,
      nor any action, individually or in concert, was proved against any  of
      the accused. Needless  to  say  that  the  entire  foundation  of  the
      prosecution story was never established.


  17. Thus, in the light of the above discussion, we are of  the  view  that
      the present appeals are devoid of merits, and we find  no  grounds  to
      interfere with the judgment delivered by the High Court.  The  appeals
      are, accordingly, dismissed.




                                      …....................................J
                                                         (Pinaki Chandra
                                   Ghose)








                                       …...................................J
                                                                (R.K.
      Agrawal)

      New Delhi;


      September 16, 2015.

-----------------------
[1]  (2010) 9 SCC 1

Print Page

No comments:

Post a Comment