Dying Declaration | Admissibility When Maker Survives : Chhattisgarh High Court

The Chhattisgarh High Court's judgment in Dhaneshwar Sahu v. State of Chhattisgarh clarifies a critical evidentiary principle: a statement made under expectation of death loses its status as a dying declaration under Section 32 of the Indian Evidence Act, 1872 if the maker survives. The Court held that such statements cannot form the sole basis for conviction, reinforcing the need for corroborative evidence in homicide cases.

Background & Facts

The Incident

On 11 May 2017, the appellant, Dhaneshwar Sahu, allegedly tied her two minor sons (aged 4 years and 4 months) to her waist and jumped into a well in Village Shivtola, District Koria. While she survived, both children drowned. The prosecution alleged that the appellant committed murder under Section 302 IPC (two counts) and attempted suicide under Section 309 IPC.

Procedural History

The case progressed as follows:

• 11 May 2017: Merg intimation (Ex. P/1) recorded by Inspector T.S. Paikra (PW-7). Postmortem reports (Ex. P/9A and P/10A) confirmed drowning as the cause of death.
• 11 May 2017: The appellant’s statement (Ex. P/20) was recorded by Executive Magistrate T.K. Das (PW-10) as a dying declaration.
• 2017: FIR No. 54/2017 registered under Sections 302 and 309 IPC. The appellant was charge-sheeted and committed to sessions court.
• 29 June 2019: Trial Court convicted the appellant under Sections 302 (two counts) and 309 IPC, sentencing her to life imprisonment and 3 months’ simple imprisonment, respectively.

Relief Sought

The appellant challenged the conviction, arguing that:

1. No eye-witnesses corroborated the incident.
2. Her dying declaration (Ex. P/20) was inadmissible under Section 32 Evidence Act since she survived.

The Legal Issue

The central question was whether a statement recorded as a dying declaration remains admissible under Section 32 Evidence Act if the maker survives, and whether it can independently sustain a conviction for homicide under Section 302 IPC.

Arguments Presented

For the Appellant

The defence contended that:

• The dying declaration (Ex. P/20) was inadmissible under Section 32 because the appellant survived. Reliance was placed on Maqsoodan v. State of U.P. (1983) and Ramprasad v. State of Maharashtra (1999).
• The prosecution failed to prove the homicidal nature of the children’s deaths, as the postmortem reports only mentioned drowning without establishing intent.

For the Respondent/State

The prosecution argued that:

• The trial Court rightly relied on the dying declaration to convict the appellant, as it was recorded by a competent magistrate.
• The appellant’s act of tying her children to her waist before jumping into the well demonstrated intent to commit murder.

The Court's Analysis

The Court conducted a meticulous examination of Section 32 Evidence Act and its interplay with Sections 155 and 157, synthesizing precedents to establish the following principles:

1. Inadmissibility Under Section 32: The Court held that a statement made under expectation of death ceases to be a dying declaration if the maker survives. Citing Maqsoodan and Gentela Vijayavardhan Rao v. State of A.P. (1996), it clarified that such statements are not admissible under Section 32 but may be used under Section 157 for corroboration or Section 155 for contradiction.

   "When a person who has made a statement, maybe in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act."

2. Limited Evidentiary Value: The Court relied on Somasundaram v. State (2020) to emphasize that a statement under Section 164 CrPC (even if recorded by a magistrate) is not substantive evidence. It cannot independently sustain a conviction without corroboration:

   "The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164."

3. Failure to Prove Homicidal Death: The Court noted that the postmortem reports (Ex. P/9A and P/10A) merely stated "drowning" as the cause of death, without indicating homicidal intent. This was fatal to the prosecution’s case under Section 302 IPC, as the burden of proving homicide remained unmet.

4. Lack of Corroborative Evidence: The prosecution’s reliance on the appellant’s husband (PW-1) and another witness (PW-3) was insufficient. Their testimonies about the appellant’s "burning sensations in her legs" did not establish a motive for murder, especially given the maternal bond between the appellant and her children.

The Verdict

The High Court allowed the appeal, setting aside the trial Court’s conviction and sentence. The appellant was acquitted of all charges under Sections 302 and 309 IPC. Given that she was already on bail, her bail bonds were directed to remain operative for six months under Section 437A CrPC.

What This Means For Similar Cases

Dying Declarations Lose Admissibility If Maker Survives

• Section 32 Inapplicable: Statements made under expectation of death are not admissible under Section 32 Evidence Act if the maker survives. Practitioners must argue that such statements can only be used under Sections 155/157 for corroboration or contradiction.
• No Independent Conviction: Courts cannot convict an accused solely on the basis of a statement recorded under Section 164 CrPC, even if it was made before a magistrate.

Corroboration Is Mandatory for Homicide Convictions

• Homicidal Intent Must Be Proved: Prosecutions under Section 302 IPC must establish that the death was homicidal, not merely accidental or suicidal. Postmortem reports must explicitly state the nature of death to sustain a conviction.
• Maternal/Paternal Bonds as Mitigating Factors: Courts may consider the relationship between the accused and victim (e.g., parent-child) when assessing intent, especially in cases involving alleged filicide.

Procedural Safeguards in Recording Statements

• Magisterial Recording: While statements recorded by magistrates under Section 164 CrPC carry weight, they are not substantive evidence. Investigating officers must gather independent corroborative evidence.
• Section 437A CrPC Compliance: Acquitted persons on bail must be informed of the six-month bond requirement under Section 437A CrPC to avoid future legal complications.