Evidence Act 1872

Whether the statement made by a victim having suffered 100% burn injuries could be accepted?

Principle of Evidence of Dying Declaration

Supreme  Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision an in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.

The Law

S 32. CASES IN WHICH STATEMENT OF RELEVANT FACT BY PERSON WHO IS DEAD OR CANNOT BE FOUND, ETC., IS RELEVANT

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—

(1) when it relates to cause of death— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such 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.

100% Burn Injuries

Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration? This question is also no longer res Integra.

In Vijay Pal Vs. State (NCT of Delhi): 2015(4) SCC 749 : (AIR 2015 SC 1495), where the statements made by the victim having suffered 100 % burn injuries was also accepted. The Supreme Court had observed thus:-

“23…….(B). Can a person who has suffered 92% burn injuries be in a condition to give a
dying declaration?

In Vijay Pal v. State(NCT of Delhi); 2015 (4) SCC 749 : (AIR 2015 SC 1495), we notice the following discussion; (SCC p. 759, paras 23-24): (at p.1502-1503, paras 21,22 of AIR)

‘23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Ngarbhai Raval v. State of Gujrat: (1992) 4SCC 69: (AIR1992 SC 2186) wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

In State of M.P. v. Dal Singh: (2013) 14 SCC 159 : (AIR 2013 SC 2059), a two Judges Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible’.

Therefore, the mere fact that the patient suffered 92% burn injuries as in a case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring, and can be found reliable” .

In the case of Bhagwan V. State of Maharashtra reported in (2019) 8 SCC 95:(AIR 2019 SC 4170), the Supreme Court has reiterated the analogies drawn in Vijay Pal (supra), where it said that the accident of burn injuries- going beyond 92% even to 100%- would not, by itself led to a conclusion that victim of such burn injuries may not be in a position to make statements.

Recently in the case of Purshottam Chopra v. State (Govt. Of Delhi) reported in AIR 2020 SC 476, the Supreme Court after taking into account the dying declaration of the deceased (Sher Singh) who suffered 100% burn injuries has maintained the conviction and sentence returned by the trial court as well as High Court. On the basis of the
dying declaration of the deceased (Sher Singh), the Apex Court dismissed the appeal filed by the appellant (Purshottam Chopra).

Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring, and can be found reliable.


 

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