When There Are Contradictory Dying Declarations, Which One To Accept? Supreme Court Answers "Difficult Question"

In a case of conflicting dying declarations, the Supreme Court relied on the one recorded after a medical examination with regard to the fitness of the deceased.

The Court explained the "difficult question" before it as follows :

"In the present case, we are faced with two dying declarations, which are totally inconsistent and contradictory to each other. Both are recorded by Judicial Magistrates. A difficult question that we have to answer is which one of the dying declarations is to be believed".

The bench comprising Justice B.R. Gavai and Justice PS Narasimha opined that the court was required to examine as to whether a dying declaration was true and reliable; as to whether it had been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and; whether it had been made under any tutoring/duress/prompting. 

In this case, the appellant approached the Court against a judgment of the High Court of Punjab and Haryana in which the High Court concurred with a judgment and order of conviction of the trial court against the appellant in an offence punishable under Section 304-B of the Indian Penal Code (IPC). 

As per the prosecution, the wife of the accused-appellant, fed up with the appellants torture and constant demands of dowry, consumed a poisonous substance on 21st April 1998 and passed away. 

The issue that arose in the case was that there were two dying declarations recorded by the deceased. The first dying declaration was recorded by Ms. Vani Gopal Sharma, Judicial Magistrate, First Class, Kurukshetra. In this declaration, the deceased stated that she was suffering from fever and since many medicines were lying on the Angithi, by mistake, she took a medicine of green colour. However, the day after the declaration was recorded, the parents of deceased Manjit Kaur reached the hospital and made a request for recording the statement of deceased Manjit Kaur under Section 164 of the Cr.P.C. On such a request, Ms. Kanchan Nariala, Judical Magistrate, First Class, Kurukshetra recorded the statement of the deceased Manjit Kaur. As per this second dying declaration, the deceased stated that her husband had demanded Rs. 6 lakhs to go to USA and that the appellant as well as his parents administered a poisonous substance to her. 

On the basis of the second dying declaration, FIR was registered. Charges came to be framed for the offence punishable under Section 304-B of the IPC. At the conclusion of the trial, the trial court convicted the appellant under Section 304-B of the IPC. However, the trial court found that the other two accused, i.e., the parents of the appellant were entitled to get benefit of doubt and acquitted them. The appellant was sentenced to suffer rigorous imprisonment for a period of 10 years. In an appeal preferred by the appellant before the High Court, while the High Court confirmed the conviction under Section 304-B of the IPC, it reduced the sentence awarded to 7 years. The appellant then approached the Supreme Court.

Here, the court opined that it was required to examine as to whether a dying declaration was true and reliable; as to whether it had been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and; whether it had been made under any tutoring/duress/prompting. It noted that a dying declaration could be the sole basis for recording conviction and if it was found to be reliable and trustworthy, no corroboration was required.

The court further stated that in case there were multiple dying declarations and there existed inconsistencies between them, the dying declaration recorded by a higher officer like a Magistrate could be relied upon. However, this was with the condition that there was no circumstance giving rise to any suspicion about its truthfulness. The court opined that in case there were circumstances wherein the declaration was found to be not made voluntarily and was not supported by any other evidence, the Court was required to scrutinise the facts of the individual case very carefully and take a decision as to which of the declarations was worth relying upon. 

In the present case, the court noted that there existed two dying declarations, which were totally inconsistent and contradictory to each other and both were recorded by Judicial Magistrates. However, it was found that while the first declaration was filed after the deceased was examined by a doctor to ensure that she was in a fit state of mind and conscious to make the statement; and was also endorsed by the doctor examining her, the same was not the case with the second declaration. The second declaration was recorded without there being examination by a doctor with regard to the fitness of the deceased. Further, the father and the sister of the deceased were present in the hospital during the recording of the second declaration. Thus, the court stated that the possibility of the second dying declaration being given after tutoring by the deceased's relatives could not be ruled out. 

Accordingly, the court opined that in the facts and circumstances of the present case, the first dying declaration would have to be considered to be more reliable and trustworthy as against the second one. The court further stated that–

"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 benefit of doubt which has been given to the other accused by the trial court, ought to have been equally given to the present appellant when the evidence was totally identical against all the three accused."

The appellant was thus acquitted of all the charges. 

CASE TITLE: MAKHAN SINGH v. THE STATE OF HARYANA | CRIMINAL APPEAL NO. 1290 OF 2010

Citation : 2022 LiveLaw (SC) 677

Indian Evidence Act 1872 - Section 32- Dying Declaration - Case of two dying declarations, both contradictory, both recorded by judicial magistrates- Court relies on the dying declaration recorded after medical examination-(Para 16,17)

Indian Evidence Act 1872- Dying Declaration - When can be relied upon - Conditions - It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.(Para 9)

Click Here To Read/Download Judgment