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Validity of Inconsistent Dying Declarations

Facts –

  1. The prosecution alleged that on 23-04-2009 at 10:00 a.m., a women in burnt condition was brought to the hospital by her husband (the appellant). Police Station Ashok Nagar District Guna, M.P., requested Pushpa’s MLC and recorded her dying declarations.
  2. On 23-04-2009, burnt clothes smelling of kerosene oil, one chimani, one broken mangalsutra, and a matchbox with “Anand” containing 3-4 matchsticks were seized. Spot maps were also made. Witnesses gave statements. Pushpa died in Guna’s district hospital on 10-05-2009. After investigating, police charged the appellants under Sections 302, 307, 304B, 498A/34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act.
  3. the trial court framed charges under Sections 498A, 302 or alternatively 304B of the Indian Penal Code against Santi Bai, and under Sections 498A, 304B against the remaining accused, namely the appellant, Ramdayal, Ram Singh, Kamla Bai, and Susheela Bai.
  4. The accused pleaded not guilty. The prosecution examined 15 witnesses. Susheela Bai had initially appeared before the trial court and thereafter absented herself; she was declared absconding and a perpetual warrant of arrest was issued. The trial court, by the impugned judgments, convicted Santi Bai for the offence under Section 302 IPC and the appellant and other accused for the offence under Section 498A IPC.
  5. The appellant and the other accused challenged their conviction. The High Court, by the impugned order, rejected their appeals. Consequently, the appellant’s conviction and sentence under Section 498A IPC was affirmed.

Arguments by Appellant –

  1. Divyakant Lahoti, learned counsel representing the appellant, argued that the lower courts erred by relying on the dying declaration of the deceased.  It was argued that a person’s statement regarding the cause of her death or any of the circumstances surrounding the transaction that resulted in her death would be admissible. It was argued that therefore, allegations made by the deceased against the accused, i.e., the appellant, in her dying declaration would be inadmissible because they did not pertain to the circumstances surrounding the transaction that led to her death.
  2. Next, it was argued that the deceased’s brother, father, sister, and brother-in-law did not support the prosecution’s claim that she had been subjected to cruelty. Given the circumstances, the conviction of the appellant cannot hold.
  3. Counsel also argued that the lower courts erred by disregarding the significant contradictions between the so-called dying declarations.  It was argued that the testimony of PW-7, who recorded Exhibit P-11, and PW-10, the doctor, regarding the time associated with the document is inconsistent. In addition, the later declaration Exhibit P-26 is skeptical, as it was not recorded with the approval of a doctor regarding the state of consciousness of the deceased. The absence of the doctor when the statement was recorded and the appellant’s omission from the first declaration, but inclusion in the second, renders both dying declarations implausible. The argument was made that the High Court in fact rejected the second dying declaration.
  4. The appellant argued that since the prosecution could not prove the charge under Section 304B, he could not have been convicted on the basis of the dying declaration because Section 32 of the Evidence Act renders relevant only statements relating to the circumstances surrounding the death of the person making it. In the present case, Ex. P-11 does not mention any act of cruelty attributable to the appellant.

Arguments by respondent –

  1. Yashraj Singh Bundela, state counsel, argued that no interference with the concurrent findings of the lower courts is needed and that the appeal involves evidence appreciation. As there is nothing perverse or unreasonable about these findings, which are based on the evidence, the court should not exercise its discretionary jurisdiction to change them.
  2. The contention was that the fact that the witnesses turned hostile could be a relevant factor. However, this must be considered alongside other factors, the most significant of which is the dying declaration recorded as Exhibit P-26. Counsel argued that the first dying declaration, Exhibit P-11, listed the actual perpetrators of the crime, i.e., those responsible for dousing the deceased with kerosene and setting her on fire, whereas Exhibit P-26 detailed the cruelty she endured due to her disability and the birth of a girl child. These individuals, as well as those who treated her cruelly and demanded dowry, were identified. Among them was the appellant’s husband. The proximity between the first and second statements was close. It was argued that the absence of a doctor’s certification regarding the mental condition or fitness to record the statement, or the fact that it was recorded by a police officer, does not automatically render the statement invalid.

Observation –

Only the second dying declaration, Exhibit P-26, details acts of cruelty. This is the only incriminating evidence presented against the defendant. In the report considered by the court, the recovery of articles and the odour of kerosene are circumstances associated with the incident of setting the deceased on fire. They do not strengthen the prosecution’s case against the appellant under Section 498A.

In light of the above, particularly the fact that the only evidence against the appellant, Exhibit P-26, was discredited by the High Court, there is no other evidence to support his conviction.

Principle/ Ratio decidendi –

In Lakhan v. State of Madhya Pradesh, the court considered and outlined the approach that may be taken when the evidence includes multiple dying declarations that may contain conflicting information.

The weight and utility of a dying declaration depend on the surrounding circumstances and the court’s assessment of its credibility in light of the evidence presented. Therefore, whether medical certification is required before a statement is recorded, who records it, etc., depends on the specifics of the case, and courts cannot adopt a standardized approach.

Judgment – Allowed

Original Judgment:

Written by Divya Anand

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