The Calcutta High Court held that a dying declaration does not become inadmissible merely because it was not recorded by a Magistrate or reduced into writing, and that Section 32 of the Indian Evidence Act does not prescribe any rigid format for its recording.

The Court held that where an oral dying declaration is proved through trustworthy witnesses and corroborated by surrounding circumstances and medical evidence, it can form a valid basis for conviction.

The Court was hearing a criminal appeal challenging a judgment of conviction by the Sessions Court, whereby the appellants were convicted for offences under Sections 302/34 of the Indian Penal Code, Section 448 IPC, and Sections 25 and 27 of the Arms Act.

A Division Bench of Justice Rajasekhar Mantha and Justice Ajay Kumar Gupta dismissed the appeal and upheld the conviction, holding: “Section 32 does not prescribe any format for recording a dying declaration. The legislature, therefore, has kept the form in which a dying declaration may be brought before the Court flexible. The State has also not prescribed any format in which a dying declaration should be made. Therefore, the admissibility of a dying declaration is not dependent on in what form and who has heard or recorded the same”.

Background

The prosecution's case was that the victim sustained fatal bullet injuries at his residence during the night when armed assailants fired at him through a grill gate after falsely claiming to be police personnel. The victim survived for some time after sustaining the injuries and was taken to multiple hospitals, where he remained conscious though in severe pain, before succumbing to the injuries.

The prosecution relied on the testimonies of close family members and co-villagers, who deposed that immediately after being shot, and subsequently while being taken to the hospital, the victim named the appellants as the persons who fired at him. The prosecution also relied on medical evidence establishing that the death was homicidal and caused by bullet injuries.

The trial court convicted the appellants and sentenced them to life imprisonment. The appellants challenged the conviction, contending inter alia that the alleged dying declaration was unreliable, inadmissible, not recorded by a Magistrate, and unsupported by proper investigation.

Court’s Observation

The High Court examined the nature and scope of dying declarations under Section 32 of the Indian Evidence Act and held that the statute does not prescribe any mandatory format or procedure for recording a dying declaration. The Court observed that while a dying declaration recorded by a Judicial Magistrate or an independent officer enhances its authenticity, admissibility is not dependent on who records or hears the declaration or the form in which it is made.

The Court clarified the distinction between admissibility and reliability, holding that admissibility only determines whether the declaration can be received in evidence, while reliability concerns whether it can be believed after evaluation on facts and circumstances.

The Court held that oral dying declarations are admissible in law and can be proved by examining the persons before whom such declarations were made. It noted that dying declarations are admitted on the doctrine of necessity, so that offenders do not escape justice merely because the victim has died.

“Therefore, the point of admissibility of a dying declaration must be decided based on the facts and circumstances of each case”, the Bench further remarked.

The Court examined the evidence of witnesses who heard the victim naming the appellants immediately after the first bullet injury and again while being taken to the hospital. It found that these statements were spontaneous, contemporaneous with the occurrence, and formed part of the same transaction, making them admissible under Sections 6 and 7 of the Evidence Act as well.

The Court held that the spontaneous naming of the appellants by the victim after sustaining the first bullet injury amounted to a statement indicating the cause of his death and the persons responsible, thereby falling squarely within Section 32 of the Evidence Act.

The Court rejected the argument that the victim was not mentally fit to make such a declaration, noting that the medical evidence consistently established that the victim was conscious, alert, and oriented, though in severe pain, and remained so until surgery. The Court observed that pain does not necessarily impair cognitive ability or memory.

The Court further held that the victim had no time or reason to falsely implicate the appellants, and that his immediate utterance of their names, using familiar short forms, indicated prior acquaintance and natural recognition.

The Court considered the argument that investigative lapses, including failure to produce a written dying declaration allegedly recorded by police, a delay in recording statements under Section 164 CrPC, irregularities in seizure of evidence, and omissions in medical records, should vitiate the prosecution's case. It held that while these lapses reflected serious deficiencies in investigation, they did not negate the core prosecution case established through reliable oral evidence and medical corroboration.

The Court held that investigative shortcomings cannot override credible evidence proving guilt beyond a reasonable doubt, particularly where the dying declaration stands duly proved by multiple witnesses.

Conclusion

The Calcutta High Court dismissed the criminal appeal and upheld the judgment of conviction and order of sentence passed by the Sessions Court.

The Court affirmed the sentence of life imprisonment imposed on the appellants for the offence under Section 302/34 IPC, along with the sentences imposed under Section 448 IPC and Sections 25 and 27 of the Arms Act.

The Court modified the direction regarding the disbursement of the fine by directing that the fine amount, if realised, be equally paid to the wife of the victim and the daughter-in-law of the victim. In default of payment of the fine by the appellants, the State was directed to pay compensation as specified by the Court.

The appellants were directed to surrender and serve the remainder of their sentence, and all connected applications were dismissed. There was no order as to costs.

Cause Title: Sajal Kanti Roy @ Subrata @ Subho & Anr. v. State of West Bengal

Appearances

Appellants: Partha Sarathi Bhattacharyya, Advocate, Bhaskar Seth, Advocate, Avik Biswas, Advocate, Sarnali Saha, Advocate

Respondents: Madhusudan Sur, Additional Public Prosecutor, Manoranjan Mahata, Advocate

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Calcutta High CourtJustice Rajasekhar ManthaJustice Ajay Kumar Gupta