New Delhi, Dec. 26: The Supreme Court has upheld an acid-thrower's life term, thirty years after the gruesome attack, rejecting the defence plea that the burn injuries on the mortally wounded victim's tongue had left him incapable of making a "dying declaration".
A bench of Justices Swatanter Kumar and Ibrahim Kalifullah threw out the argument that the statement recorded by police under Section 161 of the Criminal Procedure Code (CrPC) could not be relied upon.
The court said once a statement recorded under Section 161 "assumes the character" of a dying declaration "falling within the four corners" of Section 32(1) of the Evidence Act, whatever "credence" that would apply to a declaration governed by Section 32(1) should "automatically" be deemed to apply to the statement.
The bench then dismissed the appeal of the convict, Sri Bhagawan, who had attacked the victim, Yogender Nath Bhargava, on May 26, 1980, in Agra following a financial dispute.
Bhargava's cries had alerted two passers-by, who rushed him to a police station where his statement was recorded by an assistant sub-inspector under CrPC Section 161. He died the next day.
The post-mortem report said Bhargava suffered "superficial burn(s) on (the) whole face, neck, front of cheeks, abdomen, whole back of both buttocks… (and the) whole tongue".
A sessions court jailed the accused for life on September 6, 1982. The case then reached Allahabad High Court, where it lingered for over 26 years. The high court dismissed Bhagawan's appeal on November 28, 2008. He then approached the apex court.
His counsel argued that according to paragraph 115 of the Police Regulations, if the statement recorded under Section 161 were to be treated as a dying declaration, it should have been recorded in the presence of two respectable witnesses.
The defence lawyer said the signature, or a mark of the declarant, and the signature of the witnesses should have been obtained at the foot of the declaration.
Since these requirements were not fulfilled, the trial court and the high court should not have relied upon the statement, the counsel contended.
The apex court said paragraph 115 makes a specific reference to the recording of a dying declaration in which such precautions have to be ensured by investigating officers, not when a Section 161 statement is recorded, "which does not require the signature of the author of the statement".
Paragraph 115 says: "The officer investigating a case in which a person has been so seriously injured that he is likely to die before he can reach a dispensary where his dying declaration can be recorded should himself record the declaration at once in the presence of two respectable witnesses, obtaining the signature or mark of the declarant and witnesses at the foot of the declaration."
Hence, the bench said, the paragraph would apply only in a grave situation where the victim is seriously injured. In the instant case, the bench added, the situation was not so grave as to warrant invoking of provisions under paragraph 115.
The bench said under Section 32(1) of the Evidence Act, it had been provided that a statement by a person who is dead, cannot be found or who has become incapable of giving evidence, would be relevant in some of these following cases:
When it relates to the cause of death
When the statement is made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death.
"Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question," the bench said.