Dying Declaration will help in convicting the appellants: High Court Of Calcutta

The Dying Declaration which was made by the dead person gave a lot of confusion in the present case and this was held in the judgement passed by a single bench judge comprising The Hon’ble Justice Sabyasachi Bhattacharyya,  in the matter  Md. Makshud and others Vs. The State of West Bengal Amicus Currie [C.R.A. No.199 of 2017].

The challenge was made against the order of conviction under Sections 308 and 34 of the Indian Penal Code (IPC). Learned Amicus Curiae submits that the DD does not contain any allegation regarding the other charges initially levelled against the accused persons, that is, demand of dowry and torture on the victim. And also they mentioned that the Doctor who conducted a post-mortem examination of the victim was not examined, nor was the post-mortem report exhibited.

We should also go through the important aspect where the DD was in two different hand-writings and did not contain any mention about the mental state of the patient at the relevant point of time. Even the prosecution witnesses, including the Doctor who signed the DD and the Investigating Officer (IO), were allegedly present at the time of such recording. Most important thing is that the victim’s signature or thumb impression does not appear in the statement also none of the other witnesses alleged to be present at the time of such recording has put their signatures in the DD as witnesses.

But, Learned counsel for the State supports the impugned judgment and order of conviction, arguing that it is well-settled that the DD of the 3 victims, if otherwise credible, can be relied on solely to convict the accused persons. Also, the mere use of different inks or handwritings in noting down the DD cannot, ipso facto, be fatal to the credibility of the same, because of both the Investigating Officer and the Doctor who examined the victim having signed the same. A mere reading of the DD (Exhibit 3/1) reveals the active participation of all the appellants in the alleged incident of setting fire to the victim’s body.

Md. Makshud, who is the first appellant and the husband of the victim (since deceased), was present at the spot but did not do anything to prevent the other co-accused from setting the victim ablaze by pouring kerosene oil on her body, He suffered “little” burn injuries and poured water on the victim, apparently to douse the fire, such act of pouring water could very well have been an afterthought.

The primary argument of the appellants is that the DD itself ought not to have been relied upon for convicting the appellants. It can’t be accepted – First, the statement made in the DD was cogent and succinct, making it all the more credible. Secondly, the statement of the victim was taken on May 24, 2010, that is, three days after the occurrence of the alleged incident on May 5 21, 2010. It was noted that, in the cross-examination of PW5 (the Doctor) and PW6 (the IO), no suggestion was put by the defence as to the actual mental state of the victim when her statement was taken.

PW4 which was the sister of the victim, corroborated in her evidence that the victim issued the DD in the presence of her family when PW4 herself was there. PW3, the brother of the victim also corroborated that the victim was interrogated by the police in the presence of the Doctor. And, the presumption of correctness of the reason for the death of the victim can be taken because of the chain of events as indicated above, applying the principle embodied in Section 114, illustration (d) of the Evidence Act, 1872.

The Hon’ble High Court perused the facts and the arguments presented, and thereby, opined that- “In the light of the above discussion, C.R.A. No. 199 of 2017 is dismissed, thereby affirming the judgment and orders of conviction and sentence dated February 28, 2018, and March 1, 2018, passed by the Additional Sessions Judge, First Track Court No. 1, at Barrackpore, in Sessions Trial No. 6(12)12, arising out of Sessions Case No. 165/2011 and confirming such conviction of sentence awarded against the appellant”.

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Judgment Reviewed by: Mandira BS

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