The Hindu : New Delhi News : Weak dying declaration can’t be basis of conviction: court

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Friday, May 30, 2008
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Weak dying declaration can’t be basis of conviction: court

J. Venkatesan

New Delhi: Holding that if a dying declaration is suspicious, it should not be acted upon to convict a person without corroborative evidence, the Supreme Court has acquitted two policemen attached to the Ammapet police station in Thanjavur district, who had been awarded life imprisonment for causing the death of a person.

A three-Judge Bench, comprising Justice Arijit Pasayat, Justice P. Sathasivam and Justice Mukundakam Sharma, said: “A dying declaration, which suffers from infirmity, cannot form the basis of conviction. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred.”

Writing the judgment, Justice Pasayat, quoting precedents, said: “Where the deceased was conscious and could never make any dying declaration, the evidence with regard to it is to be rejected. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and that deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.”

The Bench pointed out that though a dying declaration was entitled to great weightage, it was worthwhile to note that the accused had no power of cross-examination. It said: “Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness.”

In the instant case, five persons, including four policemen of Ammapet police station – Panneerselvam and three others – faced trial for alleged commission of murder of Arunbharathi.

It was alleged that they poured petrol on the deceased and set him ablaze, and that the deceased had given a dying declaration to that effect. The Thanjavur sessions court sentenced them to life.

On appeal, the Madras High Court acquitted three persons, but confirmed the life sentence for Panneerselvam, head constable, and another constable.

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