HYDERABAD: In cases where there are multiple divergent dying declarations (statement written or verbal of relevant facts made by a person, who is dead), the Courts must not invariably prefer the statement that is incriminatory and reject the statement that does not implicate the accused.
The Courts will decide on the facts of each case. If the Courts find that the incriminatory dying declaration brings out the truthful position, particularly in conjunction with the capacity of the deceased to make such declaration, it can be acted upon. Equally, the circumstances that render the earlier dying declaration worthy or unworthy of acceptance can also be considered. The real point is to ascertain which one contains the truth.
A dying declaration is relevant evidence as declared by Section 32 of the Indian Evidence Act, 1872. Dying declaration is admissible not only in the case of homicide but also in civil suits. If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. If the dying declaration is suspicious, then the Court will not act upon without corroborative evidence. The Court will scrutinise the dying declaration carefully and ensure that the declaration is not the result of tutoring, prompting or imagination.
In an appeal before the Supreme Court, the appellant challenged the judgment of the trial court and high court that had convicted him under IPC Sections 302 (punishment for murder) and 506 (punishment for criminal intimidation).
The case of the prosecution is that the victim was married to the appellant. He used to harass his wife and had an illicit relationship with his sister-in-law. One day, he came home in the evening under influence of liquor and poured kerosene oil on his wife, some oil over himself and threw a lighted match stick on her. Both of them were taken to the hospital with burn injuries. Initially, she gave two statements, which did not implicate the appellant.
However, after two days, she made a dying declaration pointing the finger of blame clearly at her husband (appellant) and attributing the act of pouring kerosene and setting her ablaze to him. An FIR was registered on the basis of her dying declaration, and later, she succumbed to severe burn injuries.
The appellant’s counsel submitted that in the first ‘two dying declarations’, which were given by the deceased herself, no incriminatory role is attributed to the appellant. Later, as a result of tutoring and prompting by her sister’s husband (co-brother of the appellant), the deceased comes up with a completely different version in the dying declaration.
In fact, the statements that were recorded at the earliest point of time after the incident corroborates the ‘first and the second dying declaration’, and the case of accidental burn injuries is clearly probablised. The counsel argued that the third dying declaration is the result of conspiracy by the co-brother in order to eliminate the appellant’s chance of succeeding to the mother-in-law’s property.
After hearing the case and perusing the material on record and various Apex Court judgments, the Supreme Court opined that the deceased was in a position, both physical and mental condition, to make the dying declaration that implicated the appellant.
The view taken by the courts (trial court and high court) is that the deceased and the appellant were admitted in the same hospital, and the presence of the appellant would have come in the way of the deceased speaking of the truth. In the dying declaration relied upon by the prosecution, the deceased has stated that as the appellant had extended threat to her, she could not give a statement on the day she was admitted. This means that she has proceeded on the basis that the statement made lastly (before her death) is the first dying declaration which she is making, and not treated the two statements made earlier as a declaration.
Further, the motive of the appellant to kill her, has been stated by her to be that he had illicit relations with his sister-in-law. As for the motive attributed, she is very coherent and clear in this regard, the Court observed.
The Apex Court dismissed the appeal saying that it do not see any ground to interfere with the orders passed by the high court and trial court.
Declaration will be subjected to scrutiny
A dying declaration is admissible in civil suits too. If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. If the same is suspicious, then it will not act upon without corroborative evidence and will scrutinise the declaration and ensure that it is not the result of tutoring or prompting