Source: Supreme Court

Why in News?

Recently the Supreme Court held that before accepting a dying declaration, the court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring.

What was the Background of Rajendra s/o Ramdas Kolhe v. State of Maharashtra Case?

• The appellant (husband) was working in the army and his wife (Rekha) was a police constable and lived in a police colony.
• The appellant was on leave and came home.
• On 22^nd July 2002 Rekha sustained burn injuries. According to prosecution Rekha was subjected to cruelty by her husband, brother-in-law, mother-in-law, father-in-law and sister-in-law.
• On the day of incident, she was beaten by her husband and brother-in-law, and they tied her hands and feet with towel and gagged her face. After that they poured kerosene on her and set her on fire.
• She was taken to hospital by the neighbors. She was completely burned.
• The First Information Report (FIR) was registered in the Police station against the accused persons (the appellant and his family) for the offences under Section 307, 498A, 342, 323 and 504 read with Section 34 of Indian Penal Code, 1860 (IPC).
• In the hospital her dying declaration was recorded by Assistant Sub Inspector. But before recording her statement, he ensured that Rekha was in a position to give the statement.
• Another dying declaration was recorded by the Special Executive Magistrate. After that Rekha died because of burn injuries. Section 302 of IPC was added to FIR.
• In her dying declaration she stated that her husband and in-laws started ill-treating her after 15 days of marriage on the ground that she did not give her salary to them. On 22^nd July 2002 her husband and brother-in-law poured kerosene on her and set her on fire. At the time of incident other in-laws were present and she was shifted to the hospital by the neighbors. Her husband and in-laws fled away.
• After the completion of the investigation a charge sheet was filed, and the accusation was made against all the accused.
• The trial court did not find any material against mother-in-law, father-in-law and sister-in-law, they all were acquitted by the trial court.
• The trial court relied on both the dying declaration and held that appellant and his brother committed an offence of murder in furtherance of common intention. The trial court sentenced the appellant, and his brother was sent to Juvenile Justice Board as he was minor.
• The appellant filed an appeal before the High Court of Bombay against this conviction.
• The High Court also relied on the dying declaration and upheld the trial court's judgment of conviction.
• Thereafter he preferred an appeal before the Supreme Court.
• The defence of the appellant was that there are material contradictions in the evidence of the prosecution witnesses. It casts serious doubt about the credibility of the declaration.

What were the Court’s Observations?

• The Supreme Court stated that it is evident that in her dying declaration Rekha clearly stated about the role played by the husband (appellant) and the brother-in-law in the incident which led to her burn injuries.
• The contents of the dying declaration have been proved. Though there are certain inconsistencies in their evidence, it is quite natural. Moreover, those are not material and do not affect the sub-stratum of her statement.
• The Court held that if the dying declaration is voluntary, credible and consistent, a great deal of sanctity is attached to a dying declaration, and it can form the sole basis for conviction.
• The Supreme Court stated that there is no reason for us to doubt the correctness of the dying declaration of the deceased which has been proved in evidence.
• The substance of the dying declaration is also borne out by the medical history of the patient recorded by the doctor which has also been proved in evidence.
• That being the position, the evidence on record clearly establishes the guilt of the appellant beyond all reasonable doubt.
• The Supreme court upheld the decision of High Cout and Trial Court. Held that appellant is guilty of committing the offence and that the guilt has been proved beyond all reasonable doubt.

What is Dying Declaration?

• The term ‘dying declaration’ derived from word ‘leterm mortem’ which means ‘words said before death’.
• Dying declaration means a statement made by a person before the death containing the cause or reason of the death or circumstances of the transaction, which resulted in his/her death.
• The rationale behind the concept of dying declaration is that a person may not lie when he is on the deathbed.
• The concept is originated from the Latin maxim ‘Nemo moriturus praesumitur mentire’ which means ‘a man will not meet his maker or God with a lie in his mouth’.
• Dying declaration is admissible in court of law and considered as trustworthy evidence.
• Dying declaration may be in oral or written form and even it made by way of signs or verbal communication.
• The law relating to dying declaration is given under Section 32 (1) of Indian Evidence Act, 1872 (IEA).
• The general rule is that hearsay evidence is not admissible. Unless the evidence tendered is tested by cross-examination, it is not creditworthy. However, Section 32(1) of IEA is an exception to this general rule.

What are the Landmark Judgments Related to Dying Declaration?

• Khushal Rao v. State of Bombay (1958)
  • The Supreme Court examined the following principles governing acceptance of dying declaration:
  • It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
  • Each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made.
  • It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.
  • A dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence.
  • A dying declaration which has been recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character.
  • In order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.
• Sher Singh v. State of Punjab (2008)
  • The Supreme Court held that acceptability of a dying declaration is greater because the declaration is made in extremity. When a party is on the verge of death, one rarely finds any motive to tell falsehood.
  • It is for this reason that the requirements of oath and cross-examination are dispensed with in the case of a dying declaration.
• Amol Singh v. State of Madhya Pradesh (2008)
  • The Supreme Court clarified that if there are inconsistencies between one dying declaration and the other, the court has to examine the nature of the inconsistencies, i.e., whether those are material or not.

What is the Legal Provision Related to Dying Declaration?

• Section 32 (1) of Indian Evidence Act, 1872 and Section 26 (a) of Bharatiya Sakshya Adhiniyam, 2023 covers the following:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death. – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.