Section 26-27 – Being in ‘the custody of a police officer’ and being ‘accused of an offence’, are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act. In this case, the accused’s name was not in the FIR. He was taken to the police station. Before his arrest was recorded, he is said to have made a confession. The court held thus: “It was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact.” So the court held that the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at his behest of, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly made a confession – Rajesh vs State of MP – 2023 INSC 839
Section 112 IEA – A husband is strongly presumed to be father of the child born to his wife. The presumption could be rebutted only when the husband proves that husband and wife had no access to each other during the period when the child could have been conceived. Further, onus is on the husband to show that he had no access. Access does not necessarily mean actual cohabitation. It only amounts opportunity of cohabitation. A husband could prove non-access only by way of pleading impotency, serious illness or impossibility of cohabitation with the wife. No evidence scientific or otherwise can be admissible to dispute the paternity of the child. Pregnancy test by ultrasound is not fully accurate. On the basis of such test one cannot claim on which date the child was precisely conceived. There is always possibility of error of few days.- SD vs RBK – Patna HC – Miscellaneous Appeal No. 287 of 2019
Section 27
Manoj Kumar Soni vs State of Andhra Pradesh | 2023 INSC 705 A doubt looms: can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt. [Manoj Kumar Soni vs State of Andhra Pradesh | 2023 INSC 705]
Section 32
When a dying declaration should be accepted? Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion-. Irfan @ Naka vs State of Uttar Pradesh – 2023 INSC 758
“Dying declaration is a substantive piece of evidence and can form the sole basis for conviction. But in order to sustain conviction only on the basis of the dying declaration, there must be a consistent dying declaration“- Rajendra Barai vs State of Chhattisgarh