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Dying Declaration Cannot Always Be The Sole Basis For Conviction

Recently , the Hon'ble Supreme Court in Irfan @ Naka V. State of Uttar Pradesh held that Dying Declaration must be voluntary and must not be the result of any kind of tutoring or prompting or a product of any imagination.

Dying Declaration is a self - explanatory term which means a statement regarding the circumstances or reason or cause of death of the deceased person. Under Indian Evidence Act , 1872 it is considered as a valid or the trustworthy evidence for convicting the accused or the assailant.

Thus this article explains dying declaration and recent Supreme Court judgement on it.

Meaning of Dying Declaration:

Dying Declaration has been derived from the term �Leterm Mortem� which means words said before death. In general it refers declaration or statement made either by words spoken or written; or by gestures; or by signs by a particular person before death regarding the cause of his death [ P.V. Radhakrishnan V. State of Karnataka ].

It is considered as a credible and trustworthy source of evidence under Indian Evidence Act , 1872 as it is believed that a dying person would not lie. It is based on the maxim Nemo moriturus praesumitur mentire which means that a person will not meet his maker with a lie in his mouth. It stands as an exception to the general rule Hearsay which prohibits the use of statement made by a person other than the who repeated it while testifying during trial.

It is mentioned under section 32 (1) of the Indian Evidence Act , 1872.

As per this section dying declaration is defined as:

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.

After bifurcating the above definition the essentials of dying declaration are:

  1. It must be a statement , written or oral; must be made voluntary and with conscious mind : The dying declaration can be either oral or written. The oral declaration shall also extend to including the gestures made by the person who is unable to speak [ Chandrashekhara V. R LR , 1937 ]. Further , the court must be convinced that the declaration was made by the declarant in the stable state of mind or with concious mind; must be voluntary ;and must not be tutored.
  2. The statement must be related to the cause of death of the person himself.
  3. The cause of death of the person must be in question.

Who Can Record Dying Declaration?

As per the Rule 33 of Criminal Rules of Practice , it is the duty of the Magistrate to record the dying declaration. However , in cases of urgency when the Magistrate is not available the dying declaration can be recorded by the Police Officer or the Doctor. The dying declaration recorded by the Magistrate has more sanctity than one being recorded by anyone else.

Though it is accepted as a credible and a trustworthy source of evidence under Indian Evidence Act , 1872 , it cannot always be the sole basis for the conviction of the accused , it must be proved beyond reasonable doubts . The courts must check that the statement is made voluntary by the deceased in a stable state of mind and must not be the result of any kind of tutoring , prompting or a product of imagination. The same can be viewed in the recent judgment of Supreme Court in Irfan @ Naka V. State of Uttar Pradesh.

What Supreme Court says in Recent Dying Declaration Case?

A three - judge bench , comprising of Justice B. R. Gavai , J.B. Pardiwala and Prashant Kumar Mishra in Irfan @ Naka V. State of Uttar Pradesh held the statement made by the deceased concerning the cause of his death must be carefully examined and scrutinized by the Courts and it is the duty of the courts to ensure that it must be a reliable source of evidence free from any tutoring, prompting or imagination and must inspire confidence. And if there is any suspicion over its truthfulness or genuineness or the evidence on record shows that the dying declaration is not true, then in such cases it cannot be the basis of conviction alone rather it is considered only as a piece of evidence which needs to be corroborated with other evidences in order to prove the charges.

The appellant-accused i.e. Irfan was the resident of Bijnor district in the State of Uttar Pradesh who lived along with his two wives; a son with the name Islamuddin ( born in wedlock with first wife i.e. Ishrat ), two brothers namely, Naushad & Irshad; and her sister named Soni (PW-4). The three deceased person more particularly his son, Islamuddin was highly opposed to his father second marriage.

Islamuddin was even once beaten up by his father i.e. appellant accused as he offered a lot of opposition against his father's second marriage. He was even threatened by the appellant accused that he would be thrown out of the house

Few days before the incident, the appellant-accused had beaten his son and at that point of time, Naushad and Irshad, brothers of appellant convict intervened to save Islamuddin. One day Shanu, convict's brother ( PW-2 ) came to meet Naushad and had dinner with Soni (PW-4), Islamuddin, Irshad. The PW-2 is said to woken up to see the flames coming from the room where the three deceased were sleeping. PW-2 and PW-4 claim to have seen the appellant-accused setting the room on fire, and thereafter fastening the door latch from outside and running away.

It is the case of the prosecution that the PW-2 and PW-4 opened the door at that point of time, saw the appellant-accused running from the roof towards the stairs.

The dying declaration of the two deceased i.e. Islamuddin and Irshad were recorded by ASI, however the statement of Naushad could not be recorded.

The Bijnor Additional District and Session Judge framed charge against the accused punishable under Sections 302 , 436 , 326 A of IPC respectively of the IPC and ordered his conviction and sentenced him to death relying on the declaration made by the deceased taking the name of the accused as the assailant.

The Allahabad High Court also upheld the Trial Court�s judgement and dismissed the appellant�s plea. The appellant then filed an appeal before the Supreme Court of India challenging the same.

The Supreme Court of India in a three - judge bench judgement , authored by Justice P.B. Pardiwala , reversed the High Court's decision and acquitted a death row convict of all the charges , saying that the dying declaration made by the two of the deceased i.e. Naushad and Ishrat cannot be the basis of conviction alone.

For dying declaration to be accepted , it must be wholly reliable and inspire confidence and must be proved beyond the reasonable doubts , which the prosecution was not able to do in present case i.e. not able to prove that the accused was the one who set the deceased on fire, before the bench. The bench , further said that the courts must always be on guard to see that the statement made is free from tutoring , prompting and imagination.

The bench also justified why presumption / sanctity is attached to dying declarations through the following two points:

Firstly , it is presumed that a person would not lie while at the brink or edge of death;

Secondly , from a public policy perspective it is to tackle a situation where the only witness to the crime is not available.

Now the question that arises is as to when a dying declaration to be accepted and when not , resolving this issue the bench has laid down certain factors that the courts can take into account. These are:
  • Whether the person making the statement was in the expectation of death?
  • Whether the dying declaration was made at the earliest opportunity? Rule of First Opportunity
  • Whether there is a reasonable suspicion to believe that declaration was put into the mouth of the dying person?
  • Whether the dying declaration was a product of prompting, tutoring, or leading at the instance of police or any interested party?
  • Whether the statement recorded properly?
  • Whether the dying declarant had the opportunity to clearly observe the incident?
  • Whether the dying declaration was consistent throughout?
  • Whether the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?
  • Whether the dying declaration was itself voluntary?
  • Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
  • In case of multiple dying declarations, whether the first one inspires the truth and is consistent with other dying declarations?

Though, a dying declaration is a substantive piece of evidence to be relied on, at the same it needs to be ensured by the courts that it is voluntary, truthful, genuine, free from any tutoring, prompting, and imagination and must be made in a fit state of mind by the declarant.

Dying declaration is, thus, a statement made by the person regarding the circumstances or the cause of his death, which serves as a truthful evidence for the conviction of the accused. However, it cannot always be the basis of conviction alone, in order to be accepted it must be reliable and must inspire confidence i.e. must be proved by the prosecution beyond the reasonable doubts.

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