Statement recorded u/s 161 CrPC is admissible as dying declaration in case of victim's demise: SC
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The statement of an injured person recorded under Section 161 of Code of Criminal Procedure (CrPC) can be considered valid for all purposes of the law and is admissible as dying declaration as per the provisions of Section 32 of the Indian Evidence Act (IE Act) according to the recent Supreme Court ruling on Wednesday, October 10, 2018.

Facts of the case

An appeal was filed against a January 2017 ruling of the Orissa High Court wherein the High Court had upheld the trial court’s judgment and found the accused guilty of the crime and also upheld appellant’s conviction under Section 304 of Indian Penal Code (IPC). The appellant – petitioner’s application was summarily dismissed by the High Court and his sentence of five years of rigorous imprisonment awarded by the trial court was upheld.

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Aggrieved by this decision of both the lower courts the appellant-petitioner had moved to the Supreme Court with a prayer for a final review of his sentence. Placing reliance in a previous judgment of the Apex Court, Laxman Vs. State of Maharashtra, (2002) 6 SCC 710, the appellant-petitioner stated that both the lower courts erred in arriving at the conclusion of his crimes based on erroneous views of law as evidence presented under Section 161 CrPC cannot be held as “dying declaration in view of the well-settled principle of law” as the victim died some three months later after recording his statements with the police.

Court ruling

The case was heard by the Bench of Honourable Justices AK Sikri and Ashok Bhusan who after a thorough perusal of the lower courts order also heard the appellant’s views. The Court observed that a perusal of Section 162 CrPC and Section 32 IE Act clearly justifies the stand taken by the lower courts. The top court pointed out, “Section 32 of the Evidence Act expresses 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.” The relevant aspect of Section 162(2) CrPC was also examined by the Court when the Court acknowledged the relevant facts of law under the Section – “Nothing in this section shall be deemed to apply  to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872” as clearly applicable in this case.

Analysing a previous judgment given in Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010) 8 SCALE 477 the Court pointed out that it was held:

A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death.”

It was further observed by the Apex Court that in Sri  Bhagwan  Vs.  State  of  Uttar  Pradesh, (2013) 12 SCC 137:

The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to  a dying declaration recorded and claimed as such.”

Having placed relevance on such previous judgments the Supreme Court decided that the observation made by the appellant-petitioner with regard to the Constitution Bench judgment in the case of Laxman Vs. State of Maharashtra, was originally to decide between two conflicting judgments of the Apex Court where the Constitution Bench of the top court held:

in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration, does not lay down a correct law.”

The Apex Court reiterated that in this instance, the view held in Laxman Vs. State of Maharashtra, is not relevant as the “Constitution bench was only considering the question of nature of medical certification regarding fitness of victim to make a dying declaration. Present is a case where a statement was recorded by I.O. under Section 161 of the victim on 05.12.1990.” The Apex Court declared that they “are fully satisfied that the trial court did not commit any error in convicting the appellant. High Court while deciding the appeal has also analysed the evidence on record and has rightly dismissed the appeal.”

Impact of the judgment

The Supreme Court in this instant case has once again reviewed the relevance of Section 161 CrPC and Section 32 Evidence Act and in a nuanced manner explained the various aspects of both the sections with regard to recording of victim’s statements. This nuanced approach to Section 161 CrPC further ensures that the victim is not cheated of true justice based on technicalities and it also clarifies any doubts regarding recording of statements of victims as well as dying declarations. The stress was made on the aspect that in certain circumstances where the fitness of the victim’s mental wellbeing is questionable the statement should be regarded on that premise. But if the victim is declared mentally fit by a certified medical practitioner then his statement can be considered as relevant irrespective of the fact when he dies, whether immediately or after a considerable period of time. It was also reiterated that by no means the Investigating Officer (I.O.) nor the Magistrate could be considered qualified enough as to judge the victim’s mental state in the absence of a medical practitioner.

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