In CRIMINAL APPEAL NO. 470 OF 2015-SC- Oral or written dying declaration must pass test of reliability; If court is satisfied that it is truthful version then law does not expect that there should be corroboration before it can be relied upon: SC Justices Surya Kant & J.B.Pardiwala [14-07-2022]

Read  Judgment: KAMAL KHUDAL v. STATE OF ASSAM 

Tulip Kanth 

New Delhi, July 14, 2022: In a case of murder where the oral dying declaration of the deceased stood corroborated with the medical evidence on record, the Supreme Court has dismissed a special leave petition filed by  a convict.

Expounding the law relating to dying declaration, the Bench of Justice Surya Kant and Justice J.B.Pardiwala said, “A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuinity or veracity. The court has, therefore, to subject it to close scrutiny.”

However, the Bench mentioned that once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises, added the Bench.

The factual background of this case was such that in 2007, the appellant herein along with the co accused (Munna Bhoi) came to the house of the deceased, namely, Uttam Dutta. The accused persons took the deceased along with them for the purpose of paddy plantation. The deceased did not return to his house till late evening. When the family members of the deceased started searching for him, they found the dead body of the deceased lying in a drain of a Tea Estate with various injuries on the body, including burn injuries. 

Thereafter, FIR was registered, and the investigation revealed that the co accused Munna Bhoi was running a liquor (local) factory situated adjacent to his paddy field. Something went wrong while the accused persons and the deceased were in the liquor factory. The locals saw the deceased coming out of the factory and the second prosecution witnesses enquired with the deceased as to what had happened. At that point of time, the deceased informed the second witness that the accused persons had poured hot lali (raw material used for preparing local liquor) on his body as a result of which he had suffered burn injuries. Saying so, the deceased left and thereafter his dead body was recovered from the drain of Duribam Tea Estate.

Later, the investigating agency arrested three persons, namely, Munna Bhoi, Kamal Khudal (appellant herein) and Bipon Bhoi. The trial court proceeded to frame charges against all the three accused persons for the offence punishable under Section 302 read with Section 34 of the IPC.The appellant herein being dissatisfied with the judgment of conviction passed by the trial court preferred the Criminal Appeal in the Gauhati High Court. The co accused Munna Bhoi also preferred an appeal and both the appeals were ordered to be dismissed. In such circumstances the appellant was before the Top Court with the present appeal. 

The Bench was of the view that  the oral evidence of the second prosecution witness with whom the deceased shared his dying declaration was  quite natural. Considering that the oral dying declaration of the deceased made before the second witness stood corroborated with the medical evidence on record, the Bench opined that the medical evidence on record suggested that there were 75% burn injuries on the chest of the deceased. The burn injuries were suffered by the deceased as the accused persons were said to have poured hot lali (raw material used for preparing liquor).

Not only this but the Bench also took note of the fact that the appellant herein came to be arrested on July 23 , 2007,which was almost after about 8 days from the date of incident. He was absconding and he in his further statement recorded under Section 313 of the CrPC had not explained where he was on the dates he went missing.It appeared to the Top Court that something went wrong while the deceased and the accused persons were inside the liquor factory and it appeared to be a case of sudden fight.

Thus, without finding any  good reason to interfere in the present appeal, the Bench dismissed the same.