First Dying Declaration More Trustworthy, Possibility Of Second One To Be Tutored Cannot Be Ruled Out, Supreme Court Holds

The Supreme Court, on August 16, relied upon the first dying declaration and set aside conviction of husband under Section 304B of the Indian Penal Code (IPC).

Dying declaration has been described under Section 32 of the Indian Evidence Act 1872. It states that: “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…”

The instant case was about a husband who was convicted by the Trial as well as the High Court for committing dowry death on his wife.

Inconsistent Dying Declarations

The wife was admitted to hospital after consumption of poisonous substance. In her first dying declaration, she stated that she was suffering from fever and had mistakenly consumed the wrong medicine. However, after her parents arrived at the hospital and her second dying declaration was recorded, she claimed that her husband and his parents forcibly made her consume poison. According to the prosecution, the husband used to harass and commit cruelty on his wife for dowry.

The Court cited its judgment in Lakhan v. State of M.P. (2010) 8 SCC 514 wherein the concept regarding dying declaration was settled. The Court had held, “in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.”

The Court observed in the instant case, that there were two dying declarations, which were totally inconsistent and contradictory to each other. Both were recorded by Judicial Magistrates.

The Court noted that a difficult question that was to be answered was which one of the dying declarations had to be believed. 

Second Statement Without Medical Examination

Bench of Justices BR Gavai and PS Narasimha observed that the second dying declaration was recorded after 3 days and no medical examination was done to ensure that the deceased was medically fit.

Tutoring Cannot Be Ruled Out As Parents Of Deceased Present In Hospital

Noting that the parents and sister of the deceased were present in the hospital at the time when the second statement was recorded, the Court observed, “The possibility of the second dying declaration (Ex. PE) being given after tutoring by her relatives cannot therefore be ruled out.”

The Court also appreciated the statement of Deputy Superintendent of Police who had stated that no corroboration was there in regard to the statement made by the deceased and concluded that the second statement was tutored.

The Court observed thus, “It therefore creates a serious doubt with regard to fairness and impartiality of the IO.  Apart from that, it is to be noted that on the basis of very same evidence, the trial court, by giving benefit of doubt, has acquitted the father and mother of the appellant. In that view of the matter, conviction of the appellant on the very same evidence, in our view, was improper.”

The Court held the first dying declaration as more trustworthy than the second one and quashed the conviction of the appellant.