Dying Declaration Can Be Sole Basis For Conviction Only When Court Is Satisfied That It Is True And Voluntary, Reiterates Supreme Court

The Supreme Court reiterated that a Court must be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.

In this case, the Karnataka High Court reversed the acquittal recorded by the Trial Court and convicted the accused in a murder case. To convict them, the High Court relied on the dying declaration made by the deceased.

In appeal, the court noted the following factors (i) interpolation in the dying declaration (ii) contradiction in the statements of prosecution witnesses regarding injuries on the palm, (iii) the victim with 80% injuries was apparently not in a situation to talk or give statement, (iv) PW-2, son of the deceased himself has stated that his mother committed suicide as she could not bear that her another son had been sent to jail, (v) there being no corroborative evidence to the statement , and (vi) there is no other evidence led by the prosecution to connect the appellants with the crime except the statement.

Referring to a few precedents on the subject [ P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC 443 , Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165, Chacko v. State of Kerala 2003) 1 SCC 112, Surinder Kumar v. State of Haryana (2011) 10 SCC 173], the bench comprising CJI NV Ramana, Justices Surya Kant and Aniruddha Bose observed.

15.It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.

16.......Although there is neither a rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration, the Court must nonetheless be satisfied that the dying declaration is true and voluntary, and only then could it be the sole basis for conviction without corroboration.

In Sampat Babso Kale and Another v. State of Maharashtra 2019 (4) SCC 739, the bench said, it was noted that "the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way around."

The court also noted that, in this case, the prosecution had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. Further, the police officer admitted that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement.

"22.... It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. We hasten to add that the law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case", the bench observed while setting aside the conviction of the accused.

Case: Jayamma  vs. State of Karnataka [CrA 758 OF 2010]
Coram: CJI NV Ramana, Justices Surya Kant and Aniruddha Bose
Citation: LL 2021 SC 251

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