When and How Dying Declaration is considered?
Case laws on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon.
Topic #001
We may hasten to add that while there is a huge wealth of case law, and incredible jurisprudential contribution by the Hon’ble Supreme Court on this subject, we are consciously referring to only a few decisions that are closer to the convictions based solely on Dying Declarations.
In P. V. Radhakrishna v. State of Karnataka1, Hon’ble Supreme Court considered the residuary question of whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard and fast rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think, and other relevant factors.
In Chacko v. State of Kerala2, Hon’ble Supreme Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 percent burns. It was held that it would be difficult to accept that the injured could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make a dying declaration. Nevertheless, Hon’ble Supreme Cour Court Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. Hon’ble Supreme Court went on to opine that even though the doctor therein had recorded “patient conscious, talking” in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.
In Paniben v. State of Gujarat3, Hon’ble Supreme Court summed up several previous judgments governing dying declaration-
There is neither rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration.(Munnu Raja v. State of M.P.[(1976) 3 SCC 104])
If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar [(1983)1 SCC 211])
The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting, or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618])
Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [(1974) 4 SCC 264])
Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25])
A dying declaration that suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654)
Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455])
Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769])
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 eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P. [1988 Supp SCC 152])
Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC 390])
Where there are more than one statement in the nature of a dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])
We may also take note of the decision of the Hon’ble Supreme Court in the case of Surinder Kumar v. State of Haryana4. In the said case, the victim was admitted in hospital with burn injuries and her dying declaration was recorded by an Executive Magistrate. This Court, first doubted whether the victim could put a thumb impression on the purported dying declaration when she had suffered 9597 percent burn injuries. Thereafter, it was noted that “at the time of recording the statement of the deceased…….no endorsement of the doctor was made about her position to make such statement”, and only after the recording of the statement did the doctor state that the patient was conscious while answering the questions, and was “fit to give a statement”. This Court lastly noticed that before the alleged dying declaration was recorded, the victim in the course of her treatment had been administered Fortwin and Pethidine injections, and therefore she could not have possessed normal alertness. It was hence held that although there is neither a rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.
Consistent with the cited principles, the Hon’ble Supreme Court refused to uphold the conviction in the case of Sampat Babso Kale and Another v. State of Maharashtra5. The dying declaration in that case was made by a victim who had suffered 98 percent burn injuries, and the statement was recorded after the victim was injected with painkillers. Hon’ble Supreme Court Court adopted a cautious approach, and opined that there were serious doubts as to whether the victim was in a fit state of mind to make the statement. Given the extent of burn injuries, it was observed that the victim must have been in great agony, and once a sedative had been injected, the possibility of her being in a state of delusion could not be completely ruled out. Further, it was specifically noted that “the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around.”
It goes without saying that when the dying declaration has been recorded in accordance with the law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such a statement, classified as a “dying declaration” is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of the last words of a person before his death which are presumed to be truthful and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.
(Reference - Jayamma & Anr. VS State of Karnataka - Criminal Appeal 573 of 2016 dated 07 May 2021)
(2003) 6 SCC 443 Paragraph 16
(2003) 1 SCC 112 Paragraph 3 & 4
(1992) 2 SCC 474 Paragraph 18
(2011) 10 SCC 173, Paragraph 25, 26 & 28
2019 (4) SCC 739 Paragraph 14, 16