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Synopsis

The Supreme Court has said that the law in India does not make the admissibility of a dying declaration dependent on the person having a consciousness of the approach of death, holding that even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32 of the Evidence Act.

A bench of Justices J.B. Pardiwala and R. Mahadevan rejected the contention of the appellant’s counsel that although the first information report was lodged by the deceased himself nine days before his death after sustaining injuries, it could not have been treated as a dying declaration as it was not made in expectation of death.

"Whether a dying declaration should be believed or not would depend upon the circumstances of the case. It is essentially a question of fact to be determined by the court on the basis of the circumstances of each case. As far as the credibility is concerned, it is just like the evidence given by a witness. It is for the court to decide whether to believe it or not and no rule can be laid down either that it should be believed or that it should not be believed," the bench said.

Once it is believed, it is irrelevant and illogical to consider that it was not made on oath and that the maker was not subjected to cross-examination. The oath is administered simply to ensure that the witness speaks the truth so that his testimony may be believed. The object of cross-examination is to test the veracity of the witness, the bench added, citing Irfan @ Naka v. State of Uttar Pradesh (2023).

However, once the dying declaration is held to be believable, the question of whether an oath was administered and whether the dying declaration was tested by cross-examination cannot arise. These questions must be considered before determining whether the dying declaration is believable. When the law has made it a “relevant fact” notwithstanding the absence of an oath and cross-examination, it means that it cannot be held to be unbelievable merely due to the absence of these factors, the bench said.

"If it is held to be unbelievable, it must be done on the basis of other circumstances. Therefore, it would be incorrect to say that a dying declaration cannot be acted upon without corroboration; if it is believed, it requires no corroboration," the bench said.

As per the facts of the case, on November 16, 2000, at around 10:30 p.m., the deceased, Prem Lal, had a quarrel with his brother, Pyare Lal (co-accused), over setting a heap of cow dung on fire. Pyare Lal, annoyed, called his two friends, the appellants Sita Ram and Onkar. All three accused allegedly assaulted the deceased. Appellant Sita Ram was alleged to have struck a blow with a Darat—a sickle-like agricultural tool—on the deceased’s forehead.

About nine days after the incident, on November 25, 2000, the deceased passed away.

The trial court, upon appreciating both oral and documentary evidence on record, acquitted all three accused of the charges under Sections 304, 451, 324, 504, and 506 read with Section 34 of the IPC.

The high court, upon reappreciation and reevaluation of the entire evidence on record, concluded that the trial court had erred in acquitting the accused. It ultimately held appellant No. 1, Sita Ram, guilty of culpable homicide not amounting to murder, punishable under Section 304 of the IPC, and sentenced him to six years of rigorous imprisonment with a fine of Rs. 5,000.

Appellant No. 2, Onkar Singh, was held guilty of offences punishable under Sections 323 and 451 of the IPC, respectively, and was sentenced to one year of rigorous imprisonment with a fine.

The appellants contended that the deceased died of asphyxia, and that too, after a period of nine days from the date of the incident. According to the counsel, the FIR lodged by the deceased could not have been treated as a dying declaration under Section 32 of the Evidence Act, as it did not relate to the cause of the deceased’s death. In other words, the submission was that since the cause of death was asphyxia, it had no nexus with the injury sustained by the deceased on his head, the court noted.

In this case, the bench found no reason to reappreciate the evidence, as the high court had already examined it thoroughly.

"We do not find any palpable error or perversity in the reasonings assigned by the High Court while holding both the appellants guilty of the alleged offence," the bench said.

The court noted that, as per the medical report, the cause of death appeared to be asphyxia. Ordinarily, asphyxia results from strangulation or throttling. However, such was not the prosecution’s case.

"One would wonder if a person has sustained or suffered injuries on his head, how could he die of asphyxia. However, the medical science says that at times due to head injury if sufficient oxygen does not reach the brain that may lead to asphyxia. Lack of adequate supply of oxygen to brain may lead to various complications such as brain swelling, damage to breathing centers, or impaired blood flow to the brain. The head injury can cause the brain to swell, increasing pressure within the skull. This pressure can compress vital brain areas, including those responsible for breathing, leading to difficulty breathing or even complete cessation of breathing," the bench said.

The appellants’ counsel further argued that the FIR could not be treated as a dying declaration because the deceased’s statement therein, imputing actus reus to the accused, neither revealed the actual cause of his death as per the post-mortem report nor bore any proximate relation to the actus reus itself.

In the present case, the post-mortem report revealed that while undergoing treatment for a skull fracture, the deceased suffered gastroenteritis, which cut off the supply of oxygen when stomach fluid entered his lungs, leading to his death by asphyxia, the bench noted.

"Although the post-mortem report simply says that the cause of death was asphyxia, yet in the medico-legal jurisprudence the cause of death of the deceased would be the wound in the head leading to a fissured fracture in the skull which led to asphyxia and ultimately the death of the deceased by this phenomenon; ‘hypoxic brain injury’. In light of this exposition, we do not find any force in the submission canvassed on behalf of the appellants," the bench said.

The court also examined whether the First Information Report lodged by the deceased should be treated as a dying declaration under Section 32 of the Evidence Act. It found no merit in the submissions regarding the admissibility of the dying declaration and the cause of death, relying on medical journals.

The bench found no reason to interfere with the high court’s judgment but considered a few mitigating circumstances to reduce the sentence.

The court sentenced appellant Sita Ram, who had served just three months in prison, to one year of rigorous imprisonment with a fine of Rs. 5,000. The bench directed him to surrender within eight weeks. It sentenced Onkar Singh to the term already served by him, with a fine of Rs. 10,000.

Case Title: Sita Ram & Anr Vs The State of Himachal Pradesh