This article is written by Raksha Rai, a student from National Law Institute University, Bhopal.

Procedural history

During trial, Hasmukh Bhai (PW.8), the driver of the rickshaw who took deceased to the hospital turned hostile and did not supported prosecution story and also the neighbor of the deceased Valiben, (PW. 4), also turned hostile and did not supported prosecution arguments, hence are the missing links in the case of prosecution. 

Secondly the deceased alleged that the accused through the lighter on the body of the accused which caught fire, the trial court ruled out this contention by assuming that all the lighters can be lighted only with the support of thump.

Thirdly, dying declarations by the deceased cannot be relied on because there are serious suspicious circumstances. 

Trial court on the basis of above observation acquitted the accused.

In the appeal by the prosecution, the High court observed all the witness and held that identity of the assailant had been identified as against the appellant in the present case. The decision of trial court in disregarding the dying declaration was illegal. The court is satisfied that the deceased had made all the declarations voluntarily without any kind of influence by other person in her full conscious state of mind. Therefore are admissible under Section 32(1) of Indian Evidence Act.

The Division bench of High Court, Gujarat convicted the accused and sentenced him imprisonment for life. Hence, the accused appealed in the Supreme Court.

Size of the bench: Division bench.

Name of the Appellant: Patel Hiralal Joitaram.

Name of Respondent: State of Gujarat.

Names of the Judges: Justice K Thomas and Justice S Variav.

Name of Appellant(s) advocates: Adv. U.R. Lalit.

Name of Respondent(s) advocates: Adv. E.C. Agrawal.

Material facts

1. On 21.10.1988 at around 10 A.M., Asha Ben was going to the school (BalMandir) for taking her daughter back home.
2. On the way, the appellant passed her on a scooter and malevolently buttonholed her and confronted her for circulating the myth that the appellant  had an illicit affair with Chartae Ben.
3. The appellant carried out a can and doused fuel liquid on Asha Ben and then took out a lighter and it threw its blaze on her.
4. Asha Ben reached the water column located near the railway station and the water consequently dispersed the flames and embers that enveloped her.
5. Sugrabibi PW. 4 helped Asha Ben by providing some clothes to cover her naked body.
6. Two Sadhus PW. 8 and PW. 9 asked her name to the person who is responsible for her condition to which she replied as “Hiralal”.
7. Vinod bhai (husband of Asha Ben) reached the place and took her to the nearby hospital in an auto rickshaw.
8. On 22.10.1988, FIR was registered on the ground of the statement made by Asha Ben to the police officer (PW.10) who arrived at the hospital.
9. On 23.10.1998, The Executive Magistrate (PW-1) recorded the statement in that statement she stated the name of “Hiralal Patel” as the accused.
10. On 15.01.1999, the Investing Officer recorded a Clarifactory Statement of Asha Ben under Section 161 of CrPC in which she gave the name of assailant as “Hiralal Joitaram”.

Issues involved

1. Whether the clarifactory statement given by the deceased under Section 161 of Crpc will fall within the scope of Section 32(1) of Indian Evidence Act?
2. Whether the decision held by lower courts are valid?
3. Whether the clarifactory statement of deceased in Ext. 67 related to the circumstances have connection with cause of her death?

Arguments of the appellant(s)

1. The evidence produced by the defense is uncertain and thus the accused should be granted the benefit of doubt.
2. The accused presented appealed against his acquittal in the High Court and the approach should have been different from that the appeal against conviction. Thus, the order of the trial court was wrongly overturned.
3. The multiple dying declarations recorded by the deceased are not consistent, fully compliant, coherent legal substance in the vicinity of the accused’s involvement in the particular act.
4. The deceased had pointed to another person and not the appellant since in the declaration annexed to the FIR (Ext.40) the name of the assailant given by deceased as “Hiralal Lalchand” but appellant is “Hiralal Joitaram”.
5. It is unreasonable and strange that incident occurred in a broad daylight in a public place during peak hours and there are no independent eye witnesses available.
6. The clarifactory statement registered by the investigating officer after the FIR that became a dying declaration of the deceased is innovation of the investigation.
7. The burn injuries of the deceased are not linked with the act of the accused because the nexus between complicity claimed and the accused has not been proved.

• Dr. N.K. Parakh PW. 12, a tutor in Forensic Medicine of the JJ Medical College, Ahmedabad, did Postmortem of her dead body and found that the demise of the victim was due to a stroke due to certain burns which would in the normal course of nature are enough to cause death of a person.
• PW-15 in cross-examination contended that death of the person had occurred because to “septic” there are high possibilities that such septic disease might have formed due to other causes.

Arguments of the respondent(s)

1. Multiple dying declarations given by the deceased are consistent and were given voluntarily and in a proper state of mind by the deceased as the deceased was conscious when were brought in the hospital.
2. Multiple dying declarations given by the deceased were a true version of the victim and without any kind of encouragement or tutoring; she expressed voluntary statements and was in a mentally fit position to make logical statements.
3. The identity of the accused is consistent with the dying declarations given by the deceased as:

• The name of the accused/ assailant is Hirala Patel
• The registration Number of the scooter of the appellant is 3060 and when Investigating Officer confiscated the scooter form his home appellant filed an application in the court for return of the said vehicle.
• Valiben (PW-9), stated that the name of the father in law of the accused in Navavati, which the deceased recorded in her dying declaration. 

4. Hasmukh bhai (PW.8), Exh. 21 the driver of the Rickshaw Number GTH 567 specifically accepted that the deceased was put in his rickshaw from the place of crime on the day of the event. The lady had suffered significant severe burns.

5. According to the medical evidence on record, the type and amount of burn injuries suffered by the deceased certainly ruled out suicidal or unintentional burns, more so when the past told before the doctor specifically talks of homicidal burn injuries.

Interpretation of law

Section 32 (1) of Indian Evidence Act, 1872

The only statement that is made even before death is the dying declaration in Section 32(1) of the Evidence Act. Furthermore the statement that is made before and describes the manner of death is also a dying statement. An individual who is aware and understands that death is about to occur may be enforceable in court to make a declaration about the cause for his/her death. The term dying declaration clarifies the word itself. It implies a written or verbal statement by the individual who is about to die or is dead, of the actual information.

Essential criteria for the admissibility of dying declaration under Section 32(1) of Evidence Act are as follows:

1. The person who makes the declaration should have died.
2. The declaration must discuss the cause of his death or the circumstances of the transaction that led to his death.
3. The cause of death of the deceased should be the issue before the court.
4. The declaration needs to be complete and consistent.
5. The person who is making the statement should be competent as a witness. 

The apex Court of India stated that if there is consistency in all of the dying declarations given by the person than such declaration can be relied on without corroborating evidence. If all the dying declarations are identical to each other it could be admissible.

The statement of the deceased must fit the facts of the case. Essential ingredients of multiple dying declarations are discussed as follows:

• Dying declarations given by the deceased must be consistence with one other.
• If all the dying statements are not identical, the court will analyze the facts of the case with the dying statement, or examine the witnesses.

In Kushal Rao vs. state of Bombay case determines the significance of the declaration of dying and what is the proper procedure for documenting it. In this particular case, if the dying declaration is documented in the question-answer form, if the medical certificate is granted by the doctor, if the dying declaration is registered by the designated person, it is admissible and accurate. If there are several dying declarations, then the court looks at both of these factors to see which dying statement has more evidence validity.

Section 162 of Code of Criminal Procedure, 1973

Statements to police not to be signed: Use of statements in evidence.

This provision safeguards the individual who makes statements under duress or enticement during police investigation. The Code requires police officers to record witness statements in order to facilitate the prosecution of the offense. But if these statements are given under duress or inducement, they are considered inadmissible in evidence because it is not possible to argue that they are freely made free and rational statements.

A statement given to the police by the accused in the course of an investigation is completely inadmissible in evidence as it is forbidden by Section 162 and whether such a statement leads to confession or admission is irrelevant; the only exception to that general principle are the statements made by the accused in compliance with Sections 32(1) and 27 of the Indian Evidence Act.

Judgement

• The prosecution is this case has established the identity of the assailant. The multiple dying declaration given by the deceased are admissible under Section 32(1) of the Evidence Act as they all are consistent with one another and voluntarily given by the deceased in her fit state of mind.
• The clarifactory statement given by the deceased is inextricably intertwined with the episode in which she was burned and died due to those burns by the act of the accused will fall under the ambit of Section 32(1) of the Indian Evidence Act.
• The Supreme Court dismissed the appeal.

Ratio decidendi

Supreme Court considered the facts and circumstances of the case and observed that the clarifactory statement which is made by the deceased was not intended to settle any conflict about the legitimacy of a person named “Hiralal” or even to determine his lineage. The deceased made the statement to correct her previous that assailant was “Hiralal Jyotaram”.

The court observed that the act of the accused was so barbaric and the condition of the deceased was critical and in such situation also she said the first name of the accused correctly as “Hiralal” and only did mistake in giving last name of the assailant as “Lalchand” instead of “Jyotram”.

the Apex court concluded that admissibility of dying declaration as evidence is initial step and once the court accepts the dying declaration then the next thing which comes is that the reliability of dying declaration and if it is considered positive then the court can take into account the admissible dying declaration. The reliable dying declaration can be considered as substantive evidence without any other corroboration.

Precedence on which court relied

In this case in hand while dealing with third issue Apex court referred the Sharad Birdhichand Sarda vs. State of Maharashtra judgment of the supreme court which deals with the scope and admissibility of Section 32 (1) under Evidence Act. The following observation of later case has been considered by the Supreme Court in the present case.

“The proximity test cannot be too simply built and essentially restricted to a universal method cut-and-dried formula in order to be enclosed in a strait jacket. Distance to time will depend on facts and circumstance of each case presented before the court .Perhaps statements relevant to or offering an apparent motive can also be admissible as part of the death transaction or differ with the circumstances of every case. It is clear that all these statements only come to light just after death of the person who talks of death”.

Supreme Court also referred Rattan Singh vs. State of Himachal Pradesh, this case also identity of the assailant was in question and whether the statement of the deceased will come under Section 32(1) and the court took following observation which court held in the latter case:

“Apparently, the selection of the words “circumstances of the transaction that resulted in his death” in Section 32(1) of evidence Act is of greater amplitude than the phrase “circumstances that caused his death” ought not be directly linked between “circumstances” and death. It is sufficient if the terms spoken by the deceased relates to any circumstances related to any of the transactions that ended in the death of the deceased. This would also come within the scope of Section 32(1) of the Evidence Act to make such a declaration. In other ways, this is not important that under the subSection, certain situations can also become admissible, given that they have a connection with the transaction that led to the death.”

Critical Analysis

In the context of the Law of Evidence, the case of Sharad Birdichand vs. State of Maharashtra is regarded a milestone. In cases where they are uncertain, the case addresses in depth the handling of circumstantial evidence and in doing so, reiterates that the duty of proving includes the burden of proving definitively and beyond doubt.

The judgment establishes the panchsheel criterion for the general analysis of circumstantial evidence. The evaluation is derived from the judgment in paragraph 153.

The judgment examines and makes a decision on the idea of the duty of proving guilt through a series of events beyond reasonable doubt that must produce only one result, the one that proves the accused to be guilty. The court held that the prosecution is responsible for proving its guilt, and the failure to protect oneself adequately should not be applied to the accused in a derogatory way. To be able to consider the circumstantial evidence against the accused, the evidence and the theory must be in line then there should be clear coherence between them. The series of events should be such that no fairground can be left in favor of the innocence of the offender. The judgment quoted and argued 23 judgments in order to infer reasonably that a case providing two potential reasons could not be applied to the accused in order to prove his guiltiness.

In Rattan Singh vs. State of Himachal Pradesh, The assailant’s act of interfering into the main hall during the night, the victim’s discovery of the assailant here that the statement that the complainant was willing to stand with a gun and shooting the gun at her all conditions so intermixed with each other by the proximity of space and time that the deceased person statement have become part of the same transaction. Thus, under Section 32(1) of the Evidence Act, it is admissible.

In any case, whether it is enforceable under Section 32(1) of the Indian Evidence Act, it is substantive evidence that can be used to identify the accused guilty, with or without confirmation. The Supreme Court therefore concluded that the deceased had accurately established the appellant standing with a pistol. The Apex Court consequently upheld the appellant’s guilty verdict and appeal was dismissed.

Conclusion

The present case Hirala Jyotarama vs. State of Gujarat, deals with admissibility of dying declaration given by the deceased under Section 32(1) of Indian Evidence Act. The deceased in this case gave 5 dying declarations explaining her cause of death, both prosecution and the appellant side accepted that fact that a barbaric incident had happened with the deceased on 21.10.1998, but the identity of the assailant was on question. The appellant pleaded that it was not the accused whose act caused burns to the deceased which ultimately resulted in her death. The learned counsel of appellant presented a document annexed with the FIR, given by the deceased in which she gave the name of the assailant as “Hiralal Patel”, whereas the name of the accused in “Hiralal Jyotaram”. Later the deceased under Section 162 CrPC, recorded a clarifactory statement mentioning the name of the assailant as Hiralal Jyotrama.

The Supreme Court explained the law related to admissibility of Dying Declaration as The provision in Section 32(1) concern a statement made by an individual prior to his death. Two forms of facts are made enforceable and then further rendered as substantive evidence.

1. His declaration as to the cause of his death;
2. His declaration as to some of the circumstances of the transaction that led to his death. A much wider magnitude than the first classification will surround the second category.

The terms ‘statement as any of the circumstances’ are able to extend the range and proportions of the domain of admissibility by itself. The subSection spreads the net into a very broad dimension when the term “circumstances” is connected to “transaction which resulted in his death” Anything that has a connection with his death near or far, directly or indirectly, may also fall under the scope of the sub-Section. As the prospect of making the declaration in flesh and blood has been extinguished once and for all, the effort should be to include the declaration of a dead individual within the sub-sweep Sections and not to remove it from it.

Admissibility is the first aspect and the court must determine to what degree it is credible until it is accepted. Once the reliability test is considered to be valid, the court needs to consider the usefulness of that statement in the specific case.

The Apex court ruled that the assertion of circumstances that led to death was sufficient in itself to broaden the scope of the declaration’s validity. Any statement explicitly or indirectly, proximately or closely linked to death is regarded under this and extends the meaning of the dying declaration. The Court convicted the accused and sentenced him imprisonment for life merely on the basis of the Dying declaration of the deceased under Section 32(1) of Indian Evidence Act. 

Appreciation of the judgement

• In this case, the Apex Court found the meaning and scope of Section 32(1) of the Indian Evidence Act and also expanded the scope of this Section in order to avoid injustice, observing that the proximity test cannot be too strictly interpreted and practically limited to a generally applicable cut and dry formula in order to be limited to a strait jacket formula. So the period distance depends on the facts and circumstances of the particular or varies with them.
• Supreme Court also held that testimony of an adversary witness should not be thrown overboard simply because the witness has turned hostile to the prosecution story. It is correct that the reliability and competence of such hostile evidence could become weak. Thus more scrutiny and a high degree of analysis will also be necessary by the court.
• In addition, the laws on evidence and the enforceability of the burden of proof to circumstantial evidence also offer a broad understanding of the structure and role of the country’s criminal justice system.
• The case laid down that statement made by the deceased under Section 162 of Crpc recoded to the officer in charge will fall under the scope of Section 32 (1) of Evidence Act.

Summary of the case

Patel Hiralal Joitaram vs. State of Gujarat, AIR 2001 SC 2944

Facts of the case

A businessman from Patan (Gujarat) was charged with scorching to death a young, miserable woman (mother of two young children). The crime was committed on a public road in broad daylight. The person against whom the allegation was made seemed to have no relationship, marital or otherwise with the accused. The deceased in this case gave 5 dying declarations explaining her cause of death, both prosecution and the appellant side accepted that fact that a barbaric incident had happened with the deceased on 21.10.1998, but the identity of the assailant was in question.

The trial court found him innocent, but he was found to be the murderer of that lady by the Division Bench of the High Court of Gujarat and convicted him and sentenced him to life imprisonment. Therefore this appeal to him was correct.

Issues involved

1. Whether the clarifactory statement given by the deceased under Section 161 of Crpc will fall within the scope of Section 32(1) of Indian Evidence Act?
2. Whether the decision held by lower courts are valid?
3. Whether the clarifactory statement of deceased in Ext. 67 related to the circumstances have connection with cause of her death?

Courts Observation

Supreme Court referred Sharad Birdhichand Sarda vs. State of Maharashtra and Rattan Singh vs. State of Himachal Pradesh observed that Apparently, the selection of the words “circumstances of the transaction that resulted in his death” in Section 32(1) of evidence Act is of greater amplitude than the phrase “circumstances that caused his death” ought not be directly linked between “circumstances” and death. It is sufficient if the terms spoken by the deceased relates to any circumstances related to any of the transactions that ended in the death of the deceased. This would also come within the scope of Section 32(1) of the Evidence Act to make such a declaration

Supreme Court considered the facts and circumstances of the case and observed that the clarifactory statement which is made by the deceased was not intended to settle any conflict about the legitimacy of a person named “Hiralal” or even to determine his lineage. The deceased made the statement to correct her previous that assailant was “Hiralal Jyotram”.

The court observed that the act of the accused was so barbaric and the condition of the deceased was critical and in such situation also she said the first name of the accused correctly as “Hiralal” and only did mistake in giving last name of the assailant as “ Lalchand” instead of “Jyotaram”.

the Apex court concluded that admissibility of dying declaration as evidence is initial step and once the court accepts the dying declaration then the next thing which comes is that the reliability of dying declaration and if it is considered positive then the court can take into account the admissible dying declaration. The reliable dying declaration can be considered as substantive evidence without any other corroboration. 

Hence clarifactory statement made by the accused under Section 162 of Crpc will fall under Section 32 (1) of Indian Evidence Act.

Suggestions

• The dying declaration should be recorded by Judicial Magistrate only because he can be the trustworthy and impartial authority to record the declaration.
• There is no uniform model for recording declarations, so the courts must set a standard method to record dying declarations in compliance with their High Court laws.
• The accused may be convicted on the mere grounds of a dying statement, but courts should not pursue this pattern since it should not be taken into consideration commonly in bride burning cases where the person died and the perpetrator’s statement is not credible in that situation. So the dying declaration should be admissible in evidence with corroboration.

References

Books referred

• Law of Evidence by Muhammad Munir.
• Principles of the Law of Evidence by Avtar Singh.

Websites referred

• https://www.manupatrafast.com/
• https://www.scconline.com/

Reports referred

• 69th Report of Law Commission of India, 1977
• 185th Report of Law Commission of India, 2003

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