Unsafe To Record Conviction On Solitary Evidence Of Oral Dying Declaration When It Is Suspicious & There Is No Corroboration: Chhattisgarh High Court

The High Court was considering a batch of criminal appeals filed by the accused appellants under Section 374(2) of CrPC challenging their conviction under Sections 498-A, 304-B read with Section 34 of IPC and also under Section 4 of the Dowry Prohibition Act, 1961.

The Single Bench of Justice Sanjay K. Agrawal observed, “The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination, and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration.”

Advocate Nishikant Sinha represented the Appellant while Additional Advocate General Ashish Shukla represented the Respondent.

Factual Background

The incident dates back to the year 2017, when the accused-appellants in furtherance of their common intention and being the husband and in-laws of a woman, subjected her to cruelty for or in connection with the demand of dowry and, further, poured kerosene oil over her body. It was alleged that they set her ablaze by lighting a matchstick, due to which, she suffered burn injuries to the extent of 75% and died during her treatment in 2017 (i.e. unnatural death within 7 years of her marriage).

It was the case of the prosecution that during treatment of the deceased in the District Hospital after having been certified to be in fit state of mind to give statement, the Executive Magistrate recorded the dying declaration of the deceased in which, she implicated the appellants to be the authors of the crime by stating that on account of demand of dowry her husband and in-laws caused her burn injuries. The trial Court convicted and sentenced the appellants against which 3 appeals were preferred before the High Court.

Reasoning

The Bench, at the outset, explained that to make out an offence under section 304B IPC, the death of a woman should be caused by burn or bodily injury or otherwise than under normal circumstances, and such a death should have occurred within seven years of the marriage. Soon before the death of the deceased, she must have been subjected to cruelty or harassment by her husband or any relative of her husband, and such cruelty or harassment should be for or in connection with a demand for dowry. If the aforesaid ingredients are established by the prosecution by leading appropriate, reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused.

“To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty or harassment “for, or in connection with the demand for dowry”. The expression “soon before her death” used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test”, it said.

Coming to the facts of the case, the Bench noted that the deceased died within 7 years of her marriage, that too on account of burn injuries; therefore, first and second ingredients to constitute the offence under Section 304-B of IPC were established on record. However, it was noticed by the Bench that since the doctor, who had certified the deceased to be in fit state of mind at the time of recording of dying declaration, had neither been cited as a witness nor brought to the witness-box to be examined before the trial Court. Moreover, the Executive Magistrate, who recorded the dying declaration, had not recorded her satisfaction either the in dying declaration or in her statement before the Court that the deceased was in a fit mental and physical condition to give statement at the time of recording of the dying declaration.. Therefore, it was not established on record that the deceased was in a fit state of mind to give a statement at the time of recording of the dying declaration. Thus, it was held that the dying declaration couldn’t be relied upon, as the same was not true and voluntary.

“Even otherwise, in view of finding arrived hereinabove, since the written dying declaration (Ex.P/32) has not been found proved by this Court, therefore, it would be unsafe to rely upon the oral dying declaration alleged to have been given by the deceased to Santosh Mishra (PW06), Anita Mishra (PW-07) and Sheela Mishra (PW-08)”, it said.

It was thus held that though the first two ingredients i.e. death of the deceased should be caused by burn or bodily injury other then normal circumstances and such death should have occurred within 7 years of the marriage, were established on record, but the remaining two ingredients i.e. soon before the death the deceased was subjected to cruelty or harassment by the appellants, being her husband and in-laws respectively and said cruelty or harassment should be for or in connection with demand of dowry, were not established either based on dying declaration or based on oral dying declaration allegedly given by the deceased.

Thus, setting aside the order of the Trial Court, the Bench allowed the three appeals and acquitted the accused persons of the said charges on the basis of benefit of doubt.

Cause Title: Vinay Kumar Pandey v. State Of Chhattisgarh (Neutral Citation: 2025:CGHC:21002)

Appearance

Appellant: Advocate Nishikant Sinha

Respondent: Additional Advocate General Ashish Shukla

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