Can a Dying Declaration be split up to segregate the case of one accused from the case of other?

The Supreme Court on Friday said it was difficult to sever the dying declaration of deceased Asha Devi so as to uphold the conviction granted to the accused by the Courts below, and on this basis gave the benefit of doubt to all the accused who had been charged with killing their daughter-in-law, and thereby reversed the verdicts given by the Trial Court and the High Court of Punjab and Haryana.

Six relatives (by marriage) of deceased Asha Devi were accused of having murdered her and thereby having committed an offence punishable under Section 302 of the Indian Penal Code. 2 of the accused died pending disposal of the case. The Court was considering 2 separate appeals preferred by the other accused in the case.

The deceased Asha Devi in her declaration to Judicial Magistrate Ms. Sarita Gupta and also the doctor who treated her, Dr. M.R. Passi said that she was given severe beating by her in-laws and later, on protesting, was set ablaze by her in-laws.

The High Court considered the evidence of Dr. Passi as well as the evidence of Ms. Sarita Gupta and affirmed the finding of the Trial Court that Asha Devi was in a fit state of mind to make a statement before the Magistrate. The accused were found guilty of having murdered Asha Devi.

Both the Trial Court and High Court dismissed the plea of alibi set up by Prem Nath, brother-in-law of the deceased and Raj Bala, sister-in-law of the deceased. Both the courts held that Asha was fit to make a dying declaration and there was no reason for her to state a falsehood. The Courts below had also said that,  there is no allegation or evidence of any matrimonial disharmony between Jagdish, her husband and Asha Devi who had been married for about nine years nor is there any allegation of any demand or harassment for dowry from Asha Devi.

The Apex Court held that, Prem Nath and Raj Bala had succeeded in establishing alibi at the time of the incident and that the Courts below had cast the burden of proof wrongly on Prem Nath and Raj Bala. The court also said that the High Court overlooked the evidence which stated Asha was locked from inside and that the door had to be broken open.

The court went on to hold that, “there may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part.”

A Bench comprising of Justices Ranjana Prakash Desai and Madan B. Lokur, said,  “It is no doubt true that when an alibi is set up, the burden is on the accused to lend credence to the defence put up by him or her. However the approach of the court should not be such as to pick holes in the case of the accused person. The defence evidence has to be tested like any other testimony, always keeping in mind that a person is presumed innocent until he or she is found guilty”.

As for the cases of Jumni and Sham Lal, the Supreme Court gave them the benefit of doubt. The court reasoned that, “it is true that when a person is on his or her death bed, there is no reason to state a falsehood but it is equally true that it is not possible to delve into the mind of a person who is facing death. In the present case the death of Asha Devi and the circumstances in which she died are extremely unfortunate but at the same time it does appear that for some inexplicable reason she put the blame for her death on all her in-laws without exception. Perhaps a more effective investigation or a more effective cross-examination of the witnesses would have brought out the truth but unfortunately on the record as it stands, there is no option but to give the benefit of doubt to Jumni (and Sham Lal) and to hold that they were not proved guilty of the offence of having murdered Asha Devi”.

The Court held that the testimony of the alibi witnesses of two of the four appellants deserves acceptance and the dying declaration so closely concerns all four appellants that it is not possible to sever the role of the sets of appellants, resulting in our giving the benefit of doubt to the remaining two appellants.

Both the set of appeals preferred by the accused parties against the judgment of the High Court were allowed by the Supreme Court.

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