Supreme Court’s View On Divergent Dying Declarations

Divergent Dying-

Contents  hide 

1 What Is A Dying declaration?

2 Factors To Be Remembered Before Recording Dying Declarations

3 Divergent dying declarations3.1 The facts of the case are:

3.1.1 Where there are inconsistencies between the dying declarations. the court, in this case, observe that:

3.2 Court’s Decision

3.3 Reference

3.4 Related

What Is A Dying declaration?

Section 32(1) of the Indian Evidence Act talks about the dying declaration. A dying declaration is a statement make by the decease relating to the cause of his death. The statement could be write, oral, or by conduct. It can be prove by the person who records it including a police officer.

The concept of dying declaration is based on the maxim “Nemo moriturus praesumitur entire” which means a man will not meet his maker with a lie in his mouth.  A dying declaration is called ”Leterme Mortem”. The word ” Leterme Mortem” means ”Words said before death”^[1].

“Dying declaration is admissible not only in the case of homicide but also in civil suits. If the court is satisfy that the dying declaration is true and voluntary, it can base a conviction on it without corroboration. If the same is suspicious, then it will not be acted upon without corroborative evidence and the court will scrutinize the declaration and ensure that it is not the result of tutoring or prompting.”[2]

Factors To Be Remembered Before Recording Dying Declarations

• “The declarant was in a fit condition of mind to give the statement when the recording was start and remain in a fit condition of mind until the recording of dying declaration was complete.
• The fact of the fit condition of mind of declarant can be best certified by a doctor.
• Yet, in the case where it was not possible to take fitness from a doctor, the dying declaration has retained its full sanctity if there are other witnesses to testify that the declarant was in a fit condition of mind and that there was nothing preventing him from making the declaration.
• However, it should not be make under the influence of anybody or prepare by prompting, tutoring, or imagination. If any dying declaration becomes suspicious, it will need corroboration.
• If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. These declarations are inconsistent or contradictory, they lose their value.”^[3]

Divergent dying declarations

Where there is more than one dying declaration and there are inconsistencies between them,

the same are known as divergent dying declarations.

The Supreme Court in the case of Jagbir Singh v. State NCT of Delhi^[4] came across an issue regarding the three dying declarations made by the deceased.

The facts of the case are:

• The appellant and the victim were married to each other; the appellant used to harass her and was in an illicit love relationship with his wife’s sister.
• One fine day, the appellant was drunk, he came home and pour kerosene oil on the victim and throw a light match on the victim.
• The victim as well as the appellant suffer injuries and was takes to the hospital. The wife gave 2 statements and none of them were implicating the appellant.
• After a day or two, the wife gave one more statement blaming the appellant for burning her.
• An FIR was register on the basis of her dying declaration, and later, she die due to severe burn injuries.
• The husband filed an appeal against his conviction for the murder of his wife on the basis of the multiple and divergent dying declarations made by the deceased i.e. his wife.[5]

The question before the Supreme Court was regarding the course of action in the cases with more than one dying declaration and

Where there are inconsistencies between the dying declarations. the court, in this case, observe that:

• When there are more than one dying declarations but are consistent with each other they can be relied upon for the conviction, but if there are inconsistencies between the dying declarations the responsibility is on the court to consider the case at hand and to look at the material on record to conclude as to which declaration is to be relie upon by the court. And if the court comes to the conclusion that none of the declarations are reliable, the court need not rely on any of them. It is very subjective and may differ from case to case.
• However, one thing that can be relied upon by the courts in the subsequent cases is that if there are divergent dying declarations, the court need not give preference to the declaration which infers the guilt of the accused over other declarations. No one declaration should be gives preference over another without any material to support the preference being make by the court. The court should try to find out the truth of the matter.

Court’s Decision

In the given case, however, the accuse was convict on the basis of the declaration that was incriminatory to him as there were other circumstances and matter on record to support the court’s decision. The courts were of the opinion that the husband and the wife were take to the same hospital and

in the presence of her husband the deceased wouldn’t have been able to speak the truth and

hence, the statement made by the deceased blaming her husband should be.[6]

Hence, the decision in the present case is not a rule to be follow in subsequent cases; it clearly depends upon the facts and circumstances at hand. The rule is that the court cannot give preference to one of the multiple declarations only because

They are inferring the guilt of the accused,

The court should have proper reasons for the same and should decide the case accordingly.

Reference

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[1] Y Srinivasa Rao, Dying Declaration, LEGAL SERVICES INDIA (Sep. 30, 2020, 11:08 AM), http://www.legalservicesindia.com/article/1137/Dying-Declaration.html#:~:text=The%20dying%20declaration%20must%20be,be%20sound%20state%20in%20mind.

[2] R Rajshekhar Rao, Courts can reject suspicious Dying Declarations in civil and criminal cases, THE NEW INDIAN EXPRESS (Oct. 05, 2020, 2:15 PM) https://www.newindianexpress.com/opinions/2020/jan/06/courts-can-reject-suspicious-dying-declarations-in-civil-and-criminal-cases-2085698.html

[3] Supra note 1.

[4] CRIMINAL APPEAL NO. 967 OF 2015 decided on 4 September, 2019

[5] Supra note 2.

[6] Supra note 1.