Summary
After a domestic quarrel, the appellant and her 10-month-old daughter were found unconscious, having consumed a poisonous substance. The child died, and the appellant survived. A Judicial Magistrate had recorded her statement as a dying declaration, in which she said she had consumed the poison and given it to the child. She later denied making the statement and attributed it to police influence. Her husband and her father-in-law turned hostile. The trial court convicted her under Sections 304 Part I and 309 IPC, and the High Court affirmed. The Supreme Court acquitted her. Where the maker survives, the statement is not a dying declaration under Section 32 of the Evidence Act and can be used only to corroborate or contradict. Its use as a confession needs voluntariness, truthfulness and corroboration, and the courts below had not evaluated the hostility of key witnesses.
Issues
- Whether a statement recorded as a dying declaration can found a conviction when its maker survives and later denies it
- Whether such a statement may be treated as a confession, and whether there was adequate corroboration
- Whether the prosecution proved guilt beyond reasonable doubt after the complainant and father-in-law turned hostile
Provisions considered
- Sections 32, 155 and 157, Indian Evidence Act, 1872A statement whose maker survives is not a dying declaration under Section 32. It may be used only to corroborate the maker under Section 157 or to contradict them under Section 155 (Veer Singh, Ramprasad). (¶¶ 7, 9)
- Section 164, Code of Criminal Procedure, 1973Treated as a statement under Section 164, it could be acted on as a confession only if voluntary, truthful and corroborated (S. Arul Raja, Aloke Nath Dutta). The appellant's retraction and the hostile witnesses left that unestablished. (¶¶ 7, 10, 11, 14, 15)
- Sections 304 Part I and 309, Indian Penal Code, 1860The convictions for culpable homicide of the child and attempt to commit suicide were set aside because guilt was not proved beyond reasonable doubt. (¶¶ 4, 22)
Held
- When the maker of a purported dying declaration survives, the statement is not admissible under Section 32 of the Evidence Act. It remains a statement under Section 164 CrPC, usable for corroboration or contradiction, and can be acted on as a confession only if its voluntariness, truthfulness and corroboration are established. (¶¶ 7, 8, 9, 10, 11)
- The appellant denied the statement and attributed it to police influence, which bears on its genuineness, while the husband and father-in-law, the vital witnesses, turned hostile. The courts below dismissed their hostility as interested and accepted the statement as unassailable, with only the doctor's limited evidence as corroboration. (¶¶ 12, 13, 14, 15, 18)
- Reasonable doubt is a doubt that survives the scrutiny of an honest and conscientious judicial mind, not a mere possibility. The failure to evaluate why the witnesses turned hostile, together with the subsisting marriage and the couple's two later children, created a reasonable doubt that must benefit the appellant. (¶¶ 16, 17, 19, 20, 21)
Result
Appeal allowed. The conviction and sentence under Sections 304 Part I and 309 IPC were set aside and the interim protection granted to the appellant made absolute.