The Wrong Statute, the Second Declaration and the Mother-in-Law's Discharge

The governing substantive law. Article 20(1) forbids conviction under a law not in force at the time of the commission of the act. The Bharatiya Nyaya Sanhita, 2023 came into force on 01.07.2024; the act charged here was committed on 18.06.2024 and the victim died on 25.06.2024. Both events precede the commencement. Section 6 of the General Clauses Act, 1897 preserves the previous operation of a repealed enactment and any liability incurred under it unless a contrary intention appears, and Section 358 of the Sanhita supplies that savings: the repeal does not affect any investigation, legal proceeding or remedy in respect of a liability incurred under the Indian Penal Code, and such proceedings continue as if the Sanhita had not been passed.

Consequence for the charge. The charge must be framed under Sections 302, 304-B and 498-A of the Indian Penal Code, 1860, with the correct particulars of the time, place and manner of the act. The reference to Sections 103(1), 85 and 80 of the Sanhita in the chargesheet is a mistake of law. It is, however, an error of citation and not one that vitiates the proceeding: the material allegations are the same and no prejudice is caused to the accused, who has had notice of the accusations throughout.

The procedural law. The trial commenced after 01.07.2024. Procedural statutes operate prospectively from the date of the proceeding unless they create new disabilities, so the Bharatiya Nagarik Suraksha Sanhita, 2023 governs the conduct of the trial, and the Bharatiya Sakshya Adhiniyam, 2023 governs the recording and appreciation of evidence, including the dying declarations (Section 26 of the Adhiniyam, corresponding to Section 32(1) of the Evidence Act, 1872).

What the order should record. I would record in the charged order that the Sanhita is not being applied retrospectively because of Article 20(1), that the trial is nonetheless conducted under the 2023 procedural enactments, and that the mis-citation in the chargesheet is corrected under the court's power to alter or rectify a charge at any stage before judgment.

The test. At the stage of discharge the court is not holding a trial. It asks whether the material on record raises a grave suspicion that the accused has committed the offence, that is, whether the material is such that a reasonable mind could, on the material, form an opinion that there is a ground for proceeding. The court may sift the material to see whether it is of a kind that could support the accusation, but it may not weigh the evidence as at a trial, nor accept a probable defence that requires proof. If the material is such that the accusation is groundless, or if the material raises only a suspicion that is not grave, the accused is entitled to be discharged.

Applying the test to the mother-in-law. Two limbs of the material touch her. First, the dying declaration of 21.06.2024, recorded by a Magistrate with a doctor's endorsement of fitness, in which she assigns a positive role: that the mother-in-law held the deceased while kerosene was poured. Second, the surrounding circumstance that the deceased resided in the shared household where she suffered the burns. There is no other material against her, and her role is absent from the first declaration.

Does that warrant discharge? Not at this stage. The court would be undertaking a trial of the reliability of the declaration if it compared and preferred one declaration over the other to hold that the material is insufficient. The very question that the defence presses – whether the second declaration is an improvement, and whether it was made after tutoring – is a question of appreciation that belongs to the stage of final judgment, after the Magistrate and the doctor have been examined. A suspicion based on an admissible dying declaration which implicates her is grave within the meaning of the section.

Order. The application for discharge is dismissed, with the express observation that nothing said in the order shall prejudice the accused at the trial, and that the question whether the second dying declaration is trustworthy as against her will be decided with reasons at the stage of judgment. A charge under Section 498-A read with Section 304-B IPC is framed against her; the court will consider at the stage of final appreciation whether the evidence is sufficient.

The governing standard. A dying declaration is admitted on the principle that a statement made in extremity, when every hope of this world is gone, is presumed to be true. It may be the sole basis of conviction, provided the court is satisfied that it is voluntary and truthful; corroboration is not a rule of law. Where there are more than one declaration, the court must examine whether each was made in a fit mental state, whether the core facts are consistent, and whether any of them shows signs of tutoring. If they are inconsistent, the court may act on the one which, on a totality of circumstances, appears trustworthy, and may accept part and reject the rest.

The missing endorsement. The absence of a doctor's certification of fitness does not by itself make a declaration inadmissible; the question is whether the declarant was in a fit state of mind to make the statement, and that can be gathered from all the circumstances, including the testimony of the Magistrate who recorded it. Conversely, a mere endorsement is not conclusive. Here, however, the Magistrate's own endorsement of 06:30 hours is contradicted by the clinical note of 07:15 hours that the deceased was drowsy and sedated. The magistrate's endorsement, made in the discharge of an official duty, carries weight, but a contemporaneous clinical record is a more objective index of the patient's condition, and the contradiction must be resolved on evidence, not by preference.

The second declaration. It is longer, more detailed, and made three days later after the deceased's brother had visited her – the classic setting for tutoring. The appearance of a new accused, absent from the first statement, is a material improvement, not a harmless elaboration. For the husband, the core version about the kerosene and the ignition is consistent across both statements and stands on the first declaration, which is nearer in time and therefore more spontaneous. For the mother-in-law, the case must stand or fall on the second declaration alone.

Directions at the charge stage. I will direct that both declarations be proved through the Executive Magistrate, that the casualty medical officer be summoned to prove the case record and the note of 07:15 hours, and that the case record be preserved. The declarations are exhibited only through the persons who recorded them, and the absence of the doctor's endorsement is recorded as a point for argument, not as a bar to marking.