Hyderabad HC: Dying declaration, if not tutored, can be clinching evidence

The courts, in general, will base the conviction in a murder case on the sole dying declaration of the deceased if it concludes that the said declaration is free from prompting or tutoring.

HYDERABAD: The courts, in general, will base the conviction in a murder case on the sole dying declaration of the deceased if it concludes that the said declaration is free from prompting or tutoring. The courts may reject the dying declaration or seek corroboration if the accused can, by cogent material, raise suspicion about the genuineness of such dying declaration.

Normally, it is believed that truth sits on the lips of a dying person and, in his last moments of departing from the mundane world, will not venture to tell lies, more so with regard to the cause of his imminent death and about his assailant. This belief usually guides the courts to accept the dying declaration.
In an appeal before the Hyderabad High Court’s division bench, the appellant-accused challenged the order of the trial court which had convicted him of an offence punishable under Section 302 of IPC (punishment for murder) and sentenced him to rigorous life imprisonment.

His counsel argued that the evidence of some of the witnesses and the inquest report established without doubt that a woman, due to poverty and lack of sustenance, was disgusted with her life and committed suicide by self-immolation. In spite of such clinching evidence, the trial court, basing on the dying declaration, came to the wrong conclusion that the accused had caused the death by pouring kerosene and setting her ablaze.

In fact, the woman suffered 90 per cent burns and it was most unlikely that she was in a conscious, coherent and fit state of mind to give declaration before the magistrate, he pointed out.
The public prosecutor, while supporting the lower court’s judgment, contended that the prosecution had established the intimacy between the accused and the deceased. 

The woman had narrated that the accused was her husband and he wanted to have another marriage to which she objected. He became angry with her and abused her. On the day of the incident he poured kerosene and set her on fire, he explained.

The bench of justices Suresh Kumar Kait and U Durga Prasad Rao found that there were no direct witnesses to the incident and the prosecution case hinged mainly on the dying declaration of the deceased and other corroborating evidence. Besides, the dying declaration showed that the duty doctor certified that the declarant was conscious, coherent and in a fit state of mind to give statement both before and after recording of the statement. In the light of such strong evidence there can be no demur about the fitness of the declarant to give statement. Reliance on dying declaration to convict the accused is proper. It is futile on the part of appellant to contend that the prosecution failed to establish the intimacy.

“Thus, on a conspectus of facts and evidence, we hold that the conviction and sentence passed by the trial court do not suffer from any perversity or illegality”, the bench said while dismissing the appeal and confirming the verdict of trial court.

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