The Recording of a Dying Declaration Cannot Be Dismissed Simply Because No Extreme Emergency Occurred at the Time: Supreme Court.

    dying declaration

    The Supreme Court has ruled that a deathbed / dying declaration cannot be thrown out simply because the victim’s life was not in imminent danger at the time it was recorded.

    “…there is no absolute proposition of law that in a case when at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life, the dying declaration should be discarded as a whole”, the Court observed referring to the precedent Laxman v State of Maharashtra (2002) 6 SCC 710.”

    The victim’s deathbed declaration was recorded in this case before the Additional City Magistrate on December 5, 1980. The victim died a month after the recording of the deathbed declaration (January 4, 1981). The accused maintained that the deathbed declaration was unreliable since there was no fear of death at the time it was recorded.

    This argument was dismissed by a court consisting of Justices MR Shah and BV Nagarathna. The bench noticed that the victim had been stabbed and that there was a risk of his life being jeopardized, therefore the dying declaration was recorded as a precaution.

    The Court further stated that the fact that the weapon used was not retrieved could not be used as a reason to disregard the dying declaration.

    The Trial Court found Subash @ Pappu guilty under Sections 302 and 148 of the Indian Penal Code. The Allahabad High Court upheld his appeal and acquitted him. The state of Uttar Pradesh appealed the acquittal to the Supreme Court.

    While the accused was not specifically charged with the offense under Section 302 r/w Section 149 of the IPC, the elements for the offense under Section 302 r/w Section 149 and Section 148 of the IPC were specifically brought to the accused’s attention. As a result, the bench concluded that not specifically charging under Section 149 IPC is at most a poor drafting of the allegation.

    In the absence of any prejudice against the accused, the failure to frame a charge under Section 149 of the Indian Penal Code will not invalidate the conviction.

    The bench remarked that if the ingredients of the section are clear or implicit in the charge framed, the conviction in that regard can be sustained even though the provision is not cited.

    The court, although partially accepting the appeal, decided that the accused could not be found guilty of the offense punishable under Section 302 IPC r/w Section 149 IPC because the dead died of septicemia after thirty days. Instead, the offender was found guilty of both the Section 304 Part I r/w Section 149 IPC and the Section 148 IPC offenses.

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