Mumbai: Can’t solely rely just on dying declaration, says Court

The accused was acquitted six years after the case was filed. Representation pic

The Dindoshi sessions court has acquitted a 30-year-old security guard, Rudrasen Yadav, in the murder case of one Ashok Pandey, which occurred on May 21, 2017. The court stated that the police failed to prove their case, emphasising the inability to rely solely on the verbal dying declaration made to the complainant, Abhishek Singh, the supervisor of Yadav and Pandey, who was the accused's colleague. The court also highlighted the failure of the police to collect fingerprints from the wooden stick allegedly used to beat the deceased.

The incident occurred in the watchman's room of Azami Compound in Sakinaka. Pandey feeling unwell, went there to rest, and the accused, having returned from duty, was also inside the room.

It is alleged that at approximately 2.55 am on the day of the incident, Singh, received a phone call on his mobile and learned that the accused had beaten the deceased, resulting in injuries. Consequently, Singh promptly went to the watchman's room, accompanied by witness Ashitosh Jaiswal, the accused and another watchman named Raffudin. Upon entering the room, they found that Pandey's head and back were wounded. Singh then called an ambulance but before it arrived he questioned Pandey, and the latter revealed that during the night, while he was asleep, Yadav assaulted him with a wooden stick. Subsequently, the complainant and Jaiswal transported Pandey to Rajawadi hospital, and from there, he was transferred to Sion hospital. Upon examination, the doctor at Sion hospital declared him dead before admitting him.

Singh told the court that as he entered the room on the day of the incident, he saw a severely injured Pandey lying on a mattress on the floor. The accused, Jaiswal and Raffudin were standing outside the said room. He then came out of the room and called an ambulance after which he entered the room again and asked Pandey what had happened. The deceased told him that he had been beaten by Yadav with a wooden stick. Singh did not put more questions to him.

DefenceSpeak

The defence lawyer, Aamir Malik, argued in court that there was a significant contradiction regarding the timing of the dying declaration. While the informant claimed the declaration was made around 3.30 am, the official record indicated the deceased had died at 2.55 am. "This inconsistency raises doubts about relying solely on the dying declaration, especially since the informant did not bring other witnesses into the room at the time," he said.

Malik emphasised that an oral dying declaration without corroboration is risky to rely upon for conviction. Additionally, he pointed out that the investigation officer failed to collect fingerprints of the accused, which is detrimental to the prosecution's case.

Malik also told the court that there was no documentation proving that the accused was employed by the security firm of the complainant.

The verdict

The court order read, "It appears that the panch witness 1, who is the informant, admitted during cross-examination that the condition of the deceased was serious and he was not communicating properly. It is evident that the conversation between the panch witness 1, informant, and the deceased was not witnessed or heard by any independent person, despite the presence of independent individuals at the scene."

The order further states, "It is true on the sole basis of dying declaration, an accused can be convicted. However, it is clear that it must be reliable, trustworthy and inspire confidence of the court. If the dying declaration is doubtful, there must be some corroborative evidence. In this case, the investigation officer had not taken fingerprints of the accused on the seized fibre stick, wooden stick and other seized material."

While acquitting the accused after six years, the court has said, "It is cardinal principle of the criminal jurisprudence that the prosecution must prove the foundational facts of the case. In this case, no foundational facts were proved by the prosecution. No evidence was brought on record about the motive of the crime. It is clear that there is no eyewitness against the accused. Therefore, it is very difficult to convict the accused only on a one-sentence oral dying declaration and said declaration is not free from doubt and does not inspire the confidence of the court. No corroborative evidence came on record about the dying declaration."

May 21
Day in 2017 when death occurred