Reiterating its earlier stand on the admissibility of uncorroborated dying declarations, the Bombay high court recently set aside a trial court's conviction of a father-son duo from Ahmednagar based solely on the deceased's narration to a doctor.
"(A) dying declaration has to be proved beyond any shadow of doubt whatsoever, it being a piece of evidence sought to be trusted without any scrutiny of cross-examination of its maker," justice AH Joshi observed while acquitting the two on February 8.
The Ahmednagar police had charged Madhav Kharat, 64, and his son Shivaji, 34, for the murder of his brother Deochand on January 17, 1997. They were arrested the day after Deochand succumbed to injuries suffered in an alleged brutal assault.
While undergoing treatment at a Shirdi Hospital, Deochand had narrated the incident to a doctor and alleged that Kharat and Shivaji had assaulted him. The trial court had convicted the duo primarily on the basis of the dying declaration.
Kharat was convicted for culpable homicide not amounting to murder and sentenced to seven years' rigorous imprisonment, while his son received a six-month jail term for causing grievous hurt to the deceased.
Both moved the Aurangabad bench of the HC in appeal in 1999. Their counsel SP Chapalgaonkar argued that the convictions cannot be maintained since they are based solely on an uncorroborated dying declaration, in absence of any eyewitness or circumstantial evidence. However, assistant public prosecutor DR Kale justified the conviction contending the dying declaration was trustworthy.
The HC found the prosecution had not even bothered to examine the doctor who had recorded Deochand's dying declaration in order to prove the deceased was in condition to give a statement. Justice Joshi set aside conviction of the duo stating that to maintain the convictions would mean to maintain them on suspicion, which cannot be done.
A division bench of the court had taken a similar view in December last year when it set aside the life sentence awarded to four persons by a Nashik sessions judge for the murder of a woman solely on the basis of her dying declaration.