Three accused persons namely A and B and C are prosecuted for the murder of X on the basis of some circumstantial evidence that was not sufficient to convict the accused persons… Is the argument of A acceptable?

Question: Three accused persons namely A and B and C are prosecuted for the murder of X on the basis of some circumstantial evidence that was not sufficient to convict the accused persons.

Apart from such circumstantial evidence, there was a dying declaration against A only, as X died before completing the dying declaration against B and C because his condition deteriorated suddenly.

The trial court convicted accused A but acquitted the accused B and C as there was no dying declaration against them and the circumstantial evidence was not sufficient to convict both of them (B and C).

A challenges his conviction in the High Court on the ground that when B and C are acquitted, he alone cannot be convicted for the murder of X. Is the argument of A acceptable? Give reasons and also refer to the case law, if any, on the point.

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Answer

A dying declaration is inadmissible in evidence if it is incomplete.

In the case of Cyril Waugh v. King, 1950 ALJ 412 (PC) where the condition of the deceased had become grave and at his own request a statement made by him in the presence of the doctor was taken by the police but it could not be completed as he fell into a coma from which he could not recover, it was held that dying declaration was inadmissible because on its face it was incomplete and no one could tell what the deceased was about to add.

In the case of Abdul Sattar v. State of Mysore, AIR 1956 SC 168 where the statement, though incomplete in the sense that the declarant could not state all that he wanted to state, yet whatever, he stated is complete in respect of a certain fact the statement would not be excluded on the ground of its being incomplete. In this case, the deceased stated, “I was going home when I came near the house of Abdul Majid, Sattar shot me from the bush. He ran away. I saw.” This was the dying declaration and the dying man was in no condition to answer further questions.

It was held that “there was no question of any incomplete statement so far as that aspect of the case was concerned. The statement in regard to Sattar having shot the deceased was complete in itself and it could not be said that any further question would have elicited any information which would run counter to the same. Under the circumstances the dying declaration, though incomplete, was complete in so far as the accused Sattar having shot the deceased was concerned and could certainly be relied upon by the prosecution.

In the case of Kushal Rao v. The State of Bombay [1958 AIR 22] before the Supreme Court where the deceased indicated that there were two more persons concerned in the crime, but he could not name them. The other two accused persons who were acquitted by the courts below had not been named in the dying declarations and, therefore, their acquittal did not, in any way militate against the truth of the dying declarations to be proved against the accused.

The court has observed that there was no such rule of prudence that an accusation by a dying man, without corroboration from an independent source, could not be the sole basis for conviction. It is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense.

The Court must, of course, be fully convinced of the truth of the statement and, naturally, it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility.”

Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.

In the present case at hand, the three accused persons namely A, B, and C are prosecuted for the murder of X on the basis of some circumstantial evidence that was not sufficient to convict the accused persons. Apart from such circumstantial evidence, there was a dying declaration against A only which becomes direct evidence against A of his guilt. No corroboration is needed. Hence, the statement of deceased shall be held as a dying declaration to be admissible against A as direct evidence against his participation in the crime.

For remaining B and C since X died before completing the dying declaration against them because his condition deteriorated suddenly, their participation in the commission of murder of the deceased cannot be refuted.

Circumstantial evidence is already present against them and needs further corroboration with other material facts to complete the weak chain of circumstance, leaving no other hypothesis other than the guilt of B and C. But if the chain of circumstances is not complete, then B and C cannot be convicted, and A cannot take the plea on the ground that when B and C are acquitted, he alone cannot be convicted for the murder of X.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X