Categories: Other Courts

Dying Declaration Recorded By Police Officer Is Admissible: Allahabad HC

It must be stated right at the outset that the Allahabad High Court as recently as on January 6, 2022 in a recent, remarkable, robust and rational judgment titled Prem Nath Yadava & Another vs State of UP in Criminal Appeal No. 1114 of 2015 upheld the life sentence of a convict in a murder case that dates back to the year 2002 while stressing that there is no prohibition that the police personnel should not record dying declaration and that such a dying declaration is also admissible in evidence. The Bench of Justice Ramesh Sinha and Justice Vikas Budhwar further noted that there might be certain defects in the investigation so conducted by the Investigating Officer, but the same cannot ipso facto be a ground to hold that the appellants are not guilty, as there exists ocular and documentary evidence, which proves that the appellants have committed the murder of the deceased. To put it differently, so it can be safely inferred that dying declaration recorded by a police officer is admissible in evidence if it inspires confidence.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Vikas Budhwar for a Bench of Allahabad High Court comprising of Justice Ramesh Sinha and himself puts forth in para 1 that, “This appeal has been preferred against the judgment and order dated 11.09.2015 passed by Additional Sessions Judge/Special Judge Gangster Court No. 5 Sultanpur, in Gangster Case No. 379 of 2012 (State Vs. Prem Nath and Another) arising out of case crime no. 157/2002, u/s 302/34, 504, 506 IPC, and Section 3(1) of the U.P. Gangster & Anti-Social Activities (Prevention) Act 1986, P.S. Kotwali Dehat, District Sultanpur whereby the appellants have been convicted u/ s 302 of IPC for life imprisonment and a fine of Rs. 10,000/- and in default of fine one year additional imprisonment, u/s 506 IPC for 2 years rigorous imprisonment and fine of Rs. 1,000/- each and in default of fine one month additional imprisonment.”

While elaborating on the facts of the case, the Bench then envisages in para 2 that, “The brief facts of the case is worded in the present appeal are that the FIR was registered on 15.02.2002 at 08:10 a.m. on the basis of the information provided by the complainant Sri Haivat Ram Yadav S/o Ramaudaan alleging that on 15.02.2002 at 7 O’ clock in the morning Sri Haivat Ram along with his brother Latheru Ram had gone to the field to answer the nature’s call and when they reached the garden/field then besides the tree the appellants who are two in number being Prem Nath Yadav S/o Mahaveer Yadav and Sanjay Yadav S/o Ram Niwas were hiding who are resident of the same village where the complainant is residing. On account of old rivalry, they suddenly came out from the place where they were hiding behind the tree and hurled abuses and threatened to kill the complainant and his brother Latheru Ram S/o Ramaudaan Yadav and thereafter, they took out their country made pistol and with the intention of killing the complainant and his brother fired on account whereof the complainant lie down on the surface but the brother of the complainant being Latheru Ram sustained bullet injuries on his stomach as well as left hand and thereafter he became totally unconscious and fell down. Witnessing the said incident, the complainant started screaming for help and on that point of time Sher Bahadur S/o Bhagirathi and one Sri Mahendra Pratap S/o Ram Bahore who were coming on motorcycle came there and by that time the villagers also came at the place of occurrence and thereafter, both the accused had ran away from there while waving country made pistol in air hurling abuses and threatening to kill all of them.”

Needless to say, the Bench then states in para 3 that, “Consequent to the same, FIR was lodged being case crime no. 157/2002, u/s 504, 506, 307 IPC against the appellants in P.S. Kotwali Dehat, District Sultanpur.”

To put things in perspective, the Bench then enunciates in para 4 that, “As per the records, it reveals that the time of the incident was somewhere at 7 O’ clock in the morning on 15.02.2002 and thereafter, the informant brought the deceased who was in injured condition, in his house whereat number of villagers got assembled and he waited 20-25 minutes for the police to come, however, as nobody has come, so the complainant accompanied the victim and proceeded for the police station at 07:30 in the morning in a jeep and the distance of the police station from the house of the complainant/victim was 8 kms. Thereafter, the FIR was lodged and the criminal case as referred to above was registered. It has also come on record that the victim/deceased was put to medical examination on the same day i.e. 15.02.2002 at 09:20 a.m. in the police station itself wherein the Blood Pressure was found to be not recordable, pulse found not palpable and the cause of injury was found to be fire arm injury, serious in nature. Therefore, the deceased was sent to District Hospital at Sultanpur as his condition was quite critical wherein he succumbed to the armed injuries at 09:45 a.m. As the victim died so section 302 of the IPC was also added and during the course of the investigation however, Section 3(1) of the U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 was also put to motion. S.I. Indra Prakash Singh was handed over the investigation. During the course of investigation he recorded the statement of the witness, prepared the site plans and also recorded the statement of the deceased and also got recorded the victim’s dying declaration. After the death of the victim, the inquest report was prepared and all the formalities relating to postmortem also conducted.”

As it turned out, the Bench then points out in para 5 that, “After concluding the investigation, the investigating officer submitted a charge sheet against the accused Prem Nath Yadav and Sanjay Yadav being the appellants. The file of the appellants was committed to the court of Session being Gangster Case No. 379 of 2012 arising out of case crime no. 157 of 2002. The learned trial court framed charges against the appellants u/s 302/34, 504, 506 IPC and Section 3(1) U.P. Gangster Act and Anti Social (Prevention) Act, 1986 accused denied the charges and claimed to trial.”

Truth be told, the Bench then discloses in para 50 that, “Addressing the issue of dying declaration in the light of law propounded by the Hon’ble Apex Court as extracted hereinabove, it will reveal that the incident occurred at 7 O’ clock in the morning on 15.02.2002 and the deceased sustained two firearm injuries, one is on the stomach and the second is in the left hand. As per the prosecution case, the deceased was brought to his house and after waiting 20-25 minutes thereafter, they proceeded for the police station, which was 8 kms away from the house, in a jeep and then the FIR was lodged at 08:10 a.m. From the analysis of the statement so recorded by the prosecution witness, it has come on record that PW-7 being the Sub-Inspector Indraprakash recorded the dying declaration and according to him, the deceased named the appellants with respect to commission of the offence. Much argument has been raised from the side of the appellants that first of all, any statement recorded as a dying declaration by the police is totally unworthy and secondly, the certificate of doctor was obtained, thirdly, the deceased was not in a condition to give the statement and fourthly, no statement had been given by the deceased as dying declaration.”

Most significantly, the Bench then minces no words to hold in para 51 that, “So far as the question of dying declaration to be recorded by the police personnel is concerned, the same cannot be outrightly ruled out, as the Hon’ble Apex Court in a judgment, so extracted hereinabove, has clearly observed in categorical terms that there is no prescribed form, format or procedure for recording of dying declaration, but the only condition is that the person, who records dying declaration, is satisfied that the maker is in a fit state of mind, capable of making such statement irrespective of issuance of certificate of fitness by the doctor. Even otherwise, there is no prohibition that the police personnel should not record dying declaration, as the position is even otherwise that the dying declaration was recorded by a police officer is also admissible in evidence.”

No less significant is what is then laid down in para 52 that, “The Court finds from the record that the deceased was brought to the police station at 08:00-08:10 a.m. on 15.02.2022 and medico legal report was prepared at 09:20 a.m. and between 09:20 and 09:45 a.m, the dying declaration was recorded by the police personnel being PW-7, when the deceased named the appellants, who had committed the offence. The time for recording the dying declaration was too short to wait for the Magistrate to arrive or take certificate of fitness from the doctor as in the case in hand, PW-7 waited either for the doctor or for the Magistrate to arrive, then by that time, it would have been too late for recording the dying declaration. This Court has to adopt a pragmatic approach as this Court cannot travel into the mind of the person, who was recording the dying declaration, as he was the best suited person to take decision for recording the dying declaration. Nonetheless, there is nothing on record to suggest that there was any animosity of PW-7 with the appellants. There is also no cross-examination conducted by the defence on the question of dying declaration, particularly, in view of the fact that the deceased was brought to the police station at 08:00-08:10 a.m. and medico legal examination was conducted at 09:20 a.m. on the same day giving 25 minutes time to PW-7 to get the dying declaration recorded and thereafter, victim succumbed at 09:45 a.m.”

Equally significant is what is then postulated in para 53 that, “Dying declaration cannot be merely discarded on the ground that the same has been recorded by police personnel or certificate of fitness was not obtained. The court below has thoroughly examined each and every aspect of the matter and thereafter proceeded to record the clear cut finding convicting the appellants. Even otherwise, it has come on record that the deceased sustained gunshot injuries and further the fact that there is no clinching evidence adduced by the appellants to hold otherwise.”

While citing the relevant case law, the Bench then states in para 57 that, “In the case of C. Muniappan & Ors. Vs. State of Tamil Nadu reported in 2010 (9) SCC 567, the Hon’ble Apex Court in Paragraph no. 55 has observed as under :-

“55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra, AIR 1974 SC 220; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850; Paras Yadav v. State of Bihar, AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185; Amar Singh v. Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, AIR 2002 SC 1051; and Ram Bali v. State of U.P., AIR 2004 SC 2329).””

Notably, the Bench then stipulates in para 58 that, “Analysing the factual and legal position as laid down by the Hon’ble Apex Court while applying the same on the facts of the case, this Court finds that there might be certain defects in the investigation so conducted by the Investigating Officer, but the same cannot ipso facto be a ground to hold that the appellants are not guilty, as even otherwise, there exists ocular and documentary evidence, which proves that the appellants have committed the said offence. Notably, there exists dying declaration of the deceased, statement of PW-1 (complainant) as well as the relevant fact that the appellants could not produce any evidence to show that they are entitled to the benefit of alibi and other crucial fact that the motive stood proved, as it also acted as a catalyst for commission of the crime.”

Furthermore, the Bench then holds in para 59 that, “We are of the opinion that the finding and the conclusion recorded by the trial court are based on correct appreciation of evidence and do not suffer from error.”

As a corollary, the Bench then directs in para 60 that, “Accordingly, the present appeal fails and is dismissed and the judgment and order dated 11.9.2015 passed by Additional Sessions Judge/Special Judge Gangster Court No. 5 Sultanpur, in Gangster Case No. 379 of 2012 (State Vs. Prem Nath and Another) arising out of case crime no. 157/2002, u/s 302/34, 504, 506 IPC, and Section 3(1) of the U.P. Gangster & Anti-Social Activities (Prevention) Act 1986, P.S. Kotwali Dehat, District Sultanpur, whereby the appellants have been convicted u/s 302 of IPC for life imprisonment and a fine of Rs. 10,000/- and in default of fine one year additional imprisonment, u/s 506 IPC for 2 years rigorous imprisonment and fine of Rs. 1,000/- each and in default of fine one month additional imprisonment is confirmed.”

For clarity, the Bench then mentions in para 61 that, “The appellants shall undergo and serve the remaining sentence awarded by the trial court concerned.”

Finally, the Bench then concludes by holding in para 62 that, “Let a copy of this order along with original record be transmitted to the trial court concerned for necessary information and its compliance.”

In sum, the Allahabad High Court has made it as clear as daylight that there is no prohibition on dying declaration being recorded by a police officer. Not just this, such dying declaration is also admissible as evidence. Acting on such dying declaration, we thus see that Allahabad High Court upholds life sentence in a murder case.