On Wednesday in Supreme Court of India Justice A K Sikri and Justice Ashok Bhushan headed a two judge bench for hearing an appeal against judgment of Orissa High Court and gave a re-iterated sentence that “ the statement of an injured recorded under Section :- 161 of Code of Criminal Procedure (CrPC), 1973 can be treated as dying declaration ” which is admissible under Section :- 32 of Indian Evidence Act, 1872.
Section 161 in The Code Of Criminal Procedure, 1973 reads as follows :-
Examination of witnesses by police :- 161 section
- Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
- Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
- The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
Appellant’s Claim :-
The appellant challenged that his conviction under Section :- 304 of Indian Penal Code (IPC), 1860 and five years rigorous imprisonment sentence awarded by the trial court.
The appellant Counsel contended that there is a contradiction in the evidence of PW 1 with the other witnesses. As there is a contradiction as who took the injured party to the hospital. He states that as the victim is unconscious how he informed the PW 1 was accused, who attacked him.
The main thrust of submission for the appellant is that statement, recorded by Investigating Officer of the victim, cannot be treated as dying declaration since death occurred after more than three months. He submits that both Courts committed error in treating the said statement as dying declaration.
Meaning of Dying Declaration :-
It is a statement of relevant facts made by a person, who is dead by written or verbal. It may also be the statement of a person who had died explaining the circumstances of his death.
Observation of the Court :-
The Bench observed that Sub-section (2) of Section 162 incorporate a clear exception to what has been laid down in sub-section (1). The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of India.