Dying declaration can be the sole basis for convicting the accused

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In the matter of: Ganpat Bakaramji Lad V/s State of Maharashtra, Criminal Appeal No. 186/2013 (Bombay High Court, Date of Decision: 09.03.2018, Coram: R.K. Deshpande, S.B. Shukre & M.G. Giratkar, JJ.) it was held that:

I.         According to Section 32 (1) of the Indian Evidence Act, 1872 a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs will suffice provided the indication as regards the culpability of the accused is positively and definitely established.

II.        When a dying declaration is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of the man who is about to die.

III.      There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording.

IV.       What evidentiary value or weight has to be attached to a dying declaration necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

V.        Dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which depends upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked- whether they were simple or complicated- and how effective or understandable the nods and gestures were. (See: Meesala Ramakrishan V/s State of A.P., (1994) 4 SCC 182)

In the matter of: Panneerselvam V/s State of Tamil Nadu, (2008) 17 SCC 190, the Hon’ble Supreme Court of India exhaustively laid down the following guidelines with respect to the admissibility of dying declaration:

(i)        Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii)       The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii)      Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv)      It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v)       Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi)      A dying declaration which suffers from infirmity such as the deceased was unconscious and thus could not have made the declaration cannot form the basis of conviction.

(vii)     Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii)    Even if it is a brief statement, it is not to be discarded.

(ix)      When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x)       If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

In the matter of: Babulal & Ors V/s State of M.P., (2003) 12 SCC 490, it was held that:

…A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity are attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is “a man will not meet his Maker with a lie in his mouth” (nemo moriturus praesumitur mentire). Mathew Arnold said, “Truth sits on the lips of a dying man”. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice

It is important to note that, videography of the dying declaration is only a measure of caution and in case it is not taken care of, the effect of it would not be fatal for the case and does not, in any circumstance, compel the court to completely discard that particular dying declaration. Further, a dying declaration made through signs, gestures or by nods is admissible as evidence, if proper care was taken at the time of recording the statement. The only caution the court ought to take is that the person recording the dying declaration is able to notice correctly as to what the declarant means by answering by gestures or nods.

The principles governing dying declarations have been exhaustively laid down in several judicial pronouncements and the same can be summarised as under:

(1) In the matter of: Munnu Raja V/s State of M.P., (1976) 3 SCC 104, it was held that, there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(2) In the matter of: State of U.P. V/s Ram Sagar Yadav, (1985) 1 SCC 522, and, Ramawati Devi V/s State of Bihar, (1983) 1 SCC 211, it was held that, if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(3) In the matter of: K. Ramachandra Reddy V/s Public Prosecutor, (1976) 3 SCC 618, it was held that, the court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(4) In the matter of: Rasheed Beg V/s State of M.P., (1974) 4 SCC 264, it was held that, where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(5) In the matter of: Kake Singh V/s State of M.P., (1981) Supp. SCC 25, it was held that, where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(6) In the matter of: Ram Manorath V/s State of U.P., (1981) 2 SCC 654, it was held that, a dying declaration which suffers from infirmity cannot form the basis of conviction.

(7) In the matter of: State of Maharashtra V/s Krishnamurti Laxmipati Naidu, (1980) Supp. SCC 455, it was held that, merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(8) In the matter of: Surajdeo Oza V/s State of Bihar, (1980) Supp. SCC 769, it was held that, merely because the dying declaration is briefly worded, it cannot be rejected/discarded. On the contrary, the shortness of the statement itself guarantees truth.

(9) In the matter of: Nanahau Ram V/s State of M.P., (1988) Supp. SCC 152, it was held that, ordinarily the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

(10)     In the matter of: State of U.P. V/s Madan Mohan, (1989) 3 SCC 390, it was held that, where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(11)     In the matter of: Paniben (Smt.) V/s State of Gujarat, (1992) 2 SCC 474, it was held that, though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath is there. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either, tutoring, prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind and had in fact a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

Multiple Dying Declarations: In case there are several dying declarations, the court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not. In cases where more than one dying declaration is there, it is the duty of the court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Mere fact of recording multiple dying declarations does not take away the importance of each individual declaration. Court has to examine the contents of dying declaration in the light of various surrounding facts and circumstances. The Hon’ble Supreme Court of India in a number of cases, where there were multiple dying declarations, consistent in material particulars not being contradictory to each other, has affirmed the conviction. (See: Vithal V/s State of Maharashtra, (2006) 13 SCC 54)

In the matter of: Amol Singh V/s State of Madhya Pradesh, (2008) 5 SCC 468, it was held that,

“…Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent (See: Kundula Bala Subrahmanyam V/s State of A.P., (1993) 2 SCC 684). However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of various surrounding facts and circumstances…

In the matter of: Lakhan V/s State of M.P., (2010) 8 SCC 514, there were two dying declarations, the first dying declaration was given to a police officer and was elaborate and comprehensive whereas the second dying declaration was recorded by a judicial magistrate and was lacking certain information given earlier. After examining the contents of the two dying declarations, the Hon’ble Supreme Court of India held that there was no inconsistency between the two dying declarations and non-mention of certain features in the dying declaration recorded by the judicial magistrate does not make both the dying declarations inconsistent.

Few important points that require consideration:

A.  Normally, a dying declaration is to be recorded in the language of the declarant. However, there is no prohibition to record such declaration in the language other than the language of the declarant and there cannot be rejection of it on this count. If an independent witness records such declaration, the requirement of reading over and explaining it in vernacular to the declarant by another person and the declarant accepting it to be true and correct may assume great significance for its acceptability. In such a situation, the court may be justified in looking for such endorsement in a written dying declaration.

B.  A dying declaration cannot be rejected merely because the same was not read over to the declarant and the declarant admitting the same to have been correctly recorded. Nonetheless, this can be one of the factors for disregarding a dying declaration if it assumes significance in the facts and circumstances of any case.

C.  A dying declaration stands on the same footing as another piece of evidence. It cannot be laid down as a general proposition of law that a dying declaration is a weaker kind of evidence compared to other pieces of evidence. There is no absolute rule of law that a dying declaration cannot form the sole basis of conviction unless corroborated by other independent evidence.

D.  Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses or a Magistrate recording the statement state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A certification by the doctor is essentially a rule of caution.

E.  When a dying declaration is recorded in writing, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate, and when such a statement is recorded by a Magistrate, there is no specified statutory form for such recording. What evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

F.   Before recording the dying declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question and had an opportunity to observe and identify the assailant. Where the eye-witnesses or Magistrate recording the statement state that the deceased was in a fit and conscious state, the medical opinion will not prevail nor can it be said that since there is no certification of the doctor as to fitness of the mind of the declarant, the dying declaration is not acceptable.

G.  Section 32 (1) of the Indian Evidence Act, 1872 does not provide that a recorder of the dying declaration should repeat the contents of such “statement” as recorded by him to the deceased to avail an affirmation from the deceased as to the correctness of what has been recorded.

H.  A Magistrate who records the dying declaration is not supposed to be acquainted with the facts and circumstances of the case. He records dying declaration at the request of Police. Sometimes, doctor records the cause of death as stated by the victim in the medical papers, and in some cases, police officer records it; they are all independent witnesses, having no concern with the alleged incident, or with the accused or victim. They are not supposed to be acquainted with the facts and circumstances of the case. That is the reason why statements of such witnesses are never recorded under Section 161 of the Code of Criminal Procedure, 1973 by any police officer in the course of investigation.

I.   Even if the Magistrate does not repeat the words spoken by the deceased or the contents of his statement, as to the cause of his death that would not cause any prejudice to the accused.

J.   Whether to accept the dying declaration as a truthful evidence, and to convict the accused on the basis thereof is a matter of appreciation of evidence and the court, where prosecution is relying solely on the dying declaration, has to be on guard that the statement of the deceased was not a result of tutoring, prompting, vindictive or a product of imagination, and apart from the satisfaction of the court that the deceased was in a fit state of mind, it is to be seen that the deceased had clear opportunity to observe and identify the accused.

K.  The Three-Fold Inquiry: In a case dealing with dying declaration the first step required is to conduct a three-fold inquiry, namely, (a) Whether a declarant had an opportunity to observe and identify the assailant or the accused?, (b) Whether a declarant was in a conscious and fit condition at the time of recording the statement?, and, (c) Whether the court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?

L.  Pivot of Section 32 (1) of the Indian Evidence Act, 1872: Dying Declaration

(i)        Section 32 (1) of the Indian Evidence Act, 1872 has been made by the Legislature, advisedly as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence.

(ii)       The statement made by the declarant is not on oath and is not subject to cross-examination to test its veracity.

(iii)      The declaration is not the product of tutoring, prompting, imagination or vindictive.

(iv)      In case of any doubt or suspicion, it should not be acted upon without corroborative evidence.

(v)       Each case must be decided on its own facts keeping in view the circumstances in which the dying declaration is made.

M. The absence of an endorsement in the dying declaration: (a) by a doctor regarding the fitness of mind of the declarant, or, (b) that the statement was read over and explained to the declarant, who found it to be correct, cannot be the reason for holding that the dying declaration is unacceptable, if the court is otherwise satisfied that such a dying declaration inspires confidence.

N.  If evidence brought on record shows that after recording material part of the dying declaration in favour of the accused, the declarant goes in coma or collapses or becomes unfit to record further statement and the dying declaration contains an endorsement that it was read over and explained to the declarant who found it true and correct, then, the presence of such endorsement becomes significant and will create a doubt about its acceptability.

O.  Section 32 (1) of the Indian Evidence Act, 1872 confers relevancy and admissibility to dying declaration to the effect that it is immaterial whether the person who made the dying declaration was or was not, at the time when it was made, under expectation of death, and further making immaterial the ascertainment of the nature of the proceeding in which the cause of death comes into question.

Dictum in the matter of: Pradeep Bisoi V/s State of Odisha [Criminal Appeal No. 1192/2018, Date of Decision: 10.10.2018, Supreme Court of India, Coram: A.K. Sikri & Ashok Bhushan, JJ.]:

1.   A statement of a person recorded under Section 161 of the Code of Criminal Procedure, 1973 can be treated as a dying declaration after the death of that person.

2.   No doubt when a person is expecting his death to take place shortly, he would refrain from indulging in falsehood. But, this does not mean that such a statement is to lose its value if the person lives for a longer period of time than expected.

3.   Statement under Section 161 of the Code of Criminal Procedure, 1973 which is covered under Section 32 (1) of the Indian Evidence Act, 1872 is relevant and admissible.

4.   Sub-section (2) to Section 162 of the Code of Criminal Procedure, 1973 incorporates a clear exception to what has been laid down in Sub-section (1). The statement recorded by police under Section 161 of the Code of Criminal Procedure, 1973, falling within the provisions of Section 32 (1) of the Indian Evidence Act, 1872 is relevant and admissible.

About Shivam Goel

Shivam GoelShivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com

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