No Need To Corroborate Dying Declaration If Given In A Fit State Of Mind: Calcutta High Court

A division bench of Calcutta High Court, consisting Justice Debangsu Basak and Justice Bibhas Ranjan De, reiterated that a dying declaration is a conclusive piece of evidence, admissible for the conviction of the accused, wherein corroboration is not mandatory when the deceased is in a 'fit state of mind' while giving the declaratory statement. Therefore, the court elaborated that conviction could be made solely on the basis of a dying declaration. Corroboration is not an absolute principle of law; it is merely a rule of prudence. Further, it was stated that other pieces of evidence put forward would not be discarded due to lacunas in the investigation report and an unmerited acquittal will not be granted solely on the basis of a lapse in part of the prosecution when the complete record of evidence is against the accused. The prosecution case filed under sections 498-A and 302 of IPC mentioned that the accused repeatedly had quarrels with wife where he used to her and in the last events of quarrelling, set her ablaze after pouring kerosene oil on her in the house where they resided. The deceased and accused were married in the year 2003. The accused suspected his wife and used to beat her for the same reason. The married couple had a daughter aged about 2 years from their wedlock. The trial court found no fault in the prosecution's case and convicted the accused for the offences punishable under sections 498-A and 302 of IPC based on the dying declaration made by the deceased, testimonies and evidences procured during the investigation. An appeal was made by the appellant i.e., the accused before this court for acquittal, the impugned trial court judgement was not interfered with. Accused was found guilty of his wife's death caused by burn injuries inflicted by the accused after pouring kerosene oil and setting her ablaze. Mr. Aniruddha Bhattacharya, the counsel on behalf of the appellant grounded his submissions on possibility of suicide which was corroborated by a number of prosecution witnesses, failure of the Investigating Officer to seize the articles according to procedure prescribed thereof. Further the counsel asserted, relying on Atbir vs Government of NCT of Delhi, that the trial judge had convicted the accused based solely on the cryptic dying declaration, which was alleged to have been made to the doctor attending the deceased without certifying the fit state of mind of the deceased at the time of giving dying declaration. Mr. Bhattacharya, in course of his argument, has contended that factum of alleged torture cannot be believed in absence of any specific date, time or place. He has further submitted that none of the witnesses ever reported to Police regarding alleged torture. While the counsel appearing for the State, Advocate Sanjay Bardhan had put heavy reliance on the clinical notes portraying the cause of injury. He further submitted that the impugned judgement of conviction of the accused is free from infirmity and illegality and prayed for non-interference by the appellate court. In the context of section 498-A, the Court first looked into the interpretation of the term "husband" and "wife" as it was pleaded that the deceased is not the legally wedded wife of the accused as his first marriage was not dissolved yet. The bench, relying upon Reema Aggarwal vs Anupam remarked: the expression "husband" covers a person who enters into a marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty in the manner provided under Section 498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Section 498-A. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabits with such woman, in the purported exercise of their role and status us as "husband is no ground to exclude them from the purview of 498-A IPC. Hon'ble Apex Court has further held that even second wife can file a complaint under Section 498-A IPC. Thus it is not disputed that both the appellant and victim were married and residing together as husband and wife. On the contention of the defence regarding absence of any specific date, time or place, the Court, after analysing the oral evidences of relatives and neighbours together with written complaint, found that the deceased was being continuously tortured by her husband i.e. the appellant. On establishing matter in the section 302, heavy reliance was placed on the dying declaration of the deceased before medical examiner of Balurghat Hospital. While exhibiting reasons on including the dying declaration to be the conclusive evidence for conviction to the present matter, the court relied on in Atbir v. Government of NCT of Delhi, wherein the following parameters were enlisted for considering dying declaration by the Apex Court: ...

No Need To Corroborate Dying Declaration If Given In A Fit State Of Mind: Calcutta High Court

Arkaprabho Roy

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