The Madras High Court has held that a truthful and voluntary dying declaration, particularly one recorded by a Judicial Magistrate who is satisfied that the declarant is conscious and in a fit state of mind, can by itself form the basis of conviction without independent corroboration; absence of a separate medical fitness certificate is not fatal where the person recording the declaration is satisfied about the declarant’s mental fitness and the surrounding evidence supports that conclusion.
The Court further held that even a statement recorded by a police officer can assume the character of a dying declaration under Section 32(1) of the Evidence Act read with the exception in Section 162(2) CrPC, though such a statement requires careful scrutiny. The extent of burn injuries is not determinative of admissibility or reliability; the decisive consideration is whether the declarant was mentally fit and capable of making the statement.
The Court also laid down that where the original electronic device is recovered and produced, and the evidence relied on is therefore primary electronic evidence, the absence of a certificate under Section 65B(4) does not necessarily render the evidence inadmissible. Such evidence may validly be considered, at minimum, to corroborate otherwise reliable direct evidence such as a dying declaration. Accordingly, the High Court confirmed the conviction and sentence imposed by the trial court.
The Division Bench comprising Justice N. Anand Venkatesh and Justice K.K. Ramakrishnan observed that the prosecution case principally rested on the dying declaration recorded by the Judicial Magistrate, and it found that the declaration had been recorded in a procedurally fair manner after the Magistrate satisfied himself, and also recorded, that the victim was conscious, oriented, and in a fit state of mind. The Bench noted that the declaration was recorded in the presence of the doctor, that the statement was coherent and natural, and that there was no material showing tutoring or external influence.
The Bench also held that the statement separately recorded by the Sub-Inspector qualified in law as a dying declaration and substantially corroborated the Magistrate’s recording, with no material contradiction between them. It rejected the defence contention that extensive burn injuries by themselves rendered the declaration unreliable, observing that the decisive test is mental fitness, not the percentage of burns.
The Bench further observed that there was no suspicious delay or irregularity in the sequence by which the Sub-Inspector began recording the victim’s statement, paused upon the Magistrate’s arrival, and resumed only after completion of the Magistrate’s recording. According to the Court, this sequence was natural and in accordance with procedure, and did not undermine the FIR or the prosecution case. The Bench also held that once the prosecution proved the foundational facts, the statutory presumption under the POCSO Act operated, and the accused had failed to rebut it or explain the incriminating circumstances, including the recovery of the mobile phone.
The High Court additionally observed that the trial court’s view on inadmissibility of the electronic evidence for want of a certificate under Section 65B was legally unsustainable in the facts of the case, because the original mobile phone had been recovered and sent for forensic examination. Relying on the principle that where the original electronic device itself is produced as primary evidence the Section 65B requirement may not arise, the Bench held that the forensic material could be relied on at least for corroborating the dying declaration.
Briefly, the appeal was filed by the sole accused challenging the judgment dated March 27, 2023, by which he had been convicted under Section 363 IPC and Section 6 of the POCSO Act and sentenced, inter alia, to imprisonment for the remainder of his natural life. The prosecution case was that the victim girl, aged about 17 years, developed acquaintance with the accused through mobile communication; he allegedly took her to a secluded place, committed penetrative sexual assault on the false promise of marriage, recorded the act without her knowledge or consent, transmitted the material through social media, threatened her, and instigated her to end her life.
Unable to bear the harassment, humiliation and intimidation, the victim committed self-immolation at her house, was admitted to hospital, and before her death gave a statement to the Sub-Inspector and a dying declaration to the Judicial Magistrate. After investigation, including recovery of the accused’s mobile phone and collection of medical and forensic material, the trial court convicted the accused, though it acquitted him under Sections 66E and 67B of the Information Technology Act.