Examination Of Person Who Recorded Dying Declaration Essential: Supreme Court

The Supreme Court recently laid down all the questions to be asked, the considerations to be kept in mind while deciding the weightage to be awarded to a dying declaration. The Court recognized the inherent value of a dying declaration but found several glaring issues that cast doubt on the reliability of the declaration used as evidence in this particular case.

It observed “In the case at hand, the court held that the dying declaration, although undoubtedly a substantive piece of evidence upon which reliance can be placed, in the present facts is rendered nugatory as the person who took down such declaration was not examined, nor did the police officer (PW19) endorse the said document with details of who took down the declaration. It is also not clear as to in front of which of the relatives of the deceased was the same was taken down.”

The Supreme Court bench comprising Justices Abhay S. Oka and Justice Sanjay Karol was hearing an appeal against a judgment of the Karnataka High Court which reversed the acquittal granted by the trial court and convicted the 6 appellants for offenses under Section 304 Part II IPC to undergo a sentence of rigorous imprisonment for 4 years while upholding the acquittal of the rest.

This was a 1997case that revolved around an alleged armed attack on the deceased, Byregowda, and his brothers while they were working in the fields. Subsequently, an FIR (First Information Report) was registered under Section 120B, 143, 447, and 302 read with Section 149 of the Indian Penal Code (IPC). The trial court acquitted all the 29 accused persons. In the appeal, the HC found a clear-cut case against 6 accused(appellants) persons and convicted them under Section 304 Part II IPC to undergo a sentence of rigorous imprisonment for 4 years while upholding the acquittal of the rest.

Aggrieved by the same, the convicts approached the Supreme Court.

PRINCIPLES REGARDING DYING DECLARATIONS

Section 32 of the Indian Evidence Act, 18723 relates to statements, written or verbal of relevant fact made by a person who is dead or who cannot be found, in other words, a dying declaration.

A summary of the exhaustive principles is laid down here for quick reference-

• Circumstances disclosed in the dying declaration must have a proximate relation to the actual occurrence
• If a dying declaration inspires confidence, it can form the basis of conviction even without corroborative evidence
• If a dying declaration inspires confidence, it can form the basis of conviction even without corroborative evidence
• Court Must Ensure Deceased's Fit State of Mind for Dying Declarations
• If there were witnesses who were present during the statement to prove that the deceased was indeed in a fit state of mind, their statements would prevail over medical evidence.
• The absence of a doctor's certificate regarding the "fit state of mind" of the declarant would not make the dying declaration inadmissible.
• In case of multiple dying declarations-Reliability and not plurality determine the evidentiary value.
• The presence of a magistrate is not a necessity but only a rule of prudence
• Dying declaration not to be discarded only due to brevity
• Examination of the person who reduced dying declaration into writing is essential
• Where the original recorded dying declaration is lost or unavailable, the prosecution is entitled to provide secondary evidence.
• A dying declaration must be free from tutoring, prompting, or imagination.

The Court began by reaffirming the principle 'nemo moriturus praesumitur mentire,' as highlighted by a 5-judge bench in Laxman v. State of Maharashtra (2002) 6 SCC 710 that when a person is at the point of death, their statements are considered truthful due to the solemnity and lack of motive for falsehood.

Circumstances disclosed in the dying declaration must have a proximate relation to the actual occurrence

The judgment drew from the Privy Council's ruling in the case of Pakala Narayana Swamy v. Emperor AIR 1939 PC 47 [5 Judge Bench] which explained the “circumstances of the transaction”. It was held that the statements by the deceased about their intentions before the incident, such as their location, purpose, or the people they were meeting, are considered relevant circumstances of the transaction and may be admissible but General expressions of fear or suspicion are not.

It added “It is not as broad as the analogous use in 'circumstantial evidence' which includes evidence of all relevant facts. It is on the other hand narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence.”

Furthermore, the judgment cited the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 [3 Judge Bench] which stressed that the test of proximity cannot be rigidly applied across all cases. It was of the view that a broader interpretation of Section 32 is designed to account for the diverse nature and character of Indian society, aiming to prevent injustice.

If a dying declaration inspires confidence, it can form the basis of conviction even without corroborative evidence

The Court referred to several landmark judgments like Madan v. State of Maharashtra (2019) 13 SCC 464 [2 Judge Bench], Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517, Panneerselvam v. State of T.N. (2008) 17 SCC 190 [3 Judge Bench] highlighted that a dying declaration, if found to be trustworthy and inspiring confidence, can serve as the primary basis for conviction, even in the absence of corroborative evidence.

However, a note of caution has also been sounded in Paniben v. State of Gujarat 1992) 2 SCC 474 it was observed- “The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination.”

Court Must Ensure Deceased's Fit State of Mind for Dying Declarations, Witness Statements Prevail Over Medical Evidence

The judgment, referencing the case of Shama v. State of Haryana (2017) 11 SCC 535 highlighted that a "fit state of mind" is an essential prerequisite for the admissibility of a dying declaration

The Court also noted that traditionally, it has relied on medical evidence for this purpose but held that if there were witnesses who were present during the statement to prove that the deceased was indeed in a fit state of mind, their statements would prevail over medical evidence.

The Court further clarified that the absence of a doctor's certificate regarding the "fit state of mind" of the declarant would not make the dying declaration inadmissible. This position was affirmed in Laxman's case and reaffirmed in the case of Surendra Bangali @ Surendra Singh Routele v. State of Jharkhand (Criminal Appeal No. 1078 of 2010 [2 Judge Bench]

On multiple dying declarations: Reliability and not plurality determine the evidentiary value

The Court referred to the case of Amol Singh v. State of M.P (2008) 5 SCC 468 which emphasized that if there are inconsistencies between different dying declarations, then it must examine the nature and determine whether it is material or not.

The court drawing from the case of Lakhan v. State of M.P (2010) 8 SCC 514 established that “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 scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.”

The court batted for a case-specific approach as advocated in Jagbir Singh v. State (NCT of Delhi) (2019) 8 SCC 779, where it held that when multiple dying declarations present inconsistencies, the court must examine the entirety of the evidence and circumstances surrounding the making of these declarations.

The presence of a magistrate not a necessity but only a rule of prudence

Citing the case of Jayamma and the 5 judge Constitution bench in Laxman's case, the judgment reiterated that the law does not compel the presence of a judicial or executive Magistrate for recording a dying declaration. Such a requirement is considered a matter of prudence.

Dying declaration not to be discarded only due to brevity

In the context of brevity, the court affirmed that a dying declaration should not be discarded just because it is concise. The Court in Surajdeo Ojha v. State of Bihar 1980 Supp SCC 769r highlighted that if a brief dying declaration contains essential information, it should not be overlooked by the courts.

The court referenced the Constitution bench in Laxman's case, which opined “In case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.”

Examination of the person who reduced dying declaration into writing essential

The ruling cited cases such as Govind Narain v. State of Rajasthan 1993 Supp (3) SCC 343 [2 Judge Bench] and Kans Raj v. State of Punjab (2000) 5 SCC 207 [3 Judge Bench], which emphasize the legal obligation to prove the making of a statement, whether written or verbal, by producing the scribe or the person who heard the deceased making the statement in court.

The Court also referred to Sudhakar v. State of Maharashtra (2000) 6 SCC 671[3 Judge Bench] where it acknowledged that in cases where the original recorded dying declaration is lost or unavailable, the prosecution is entitled to provide secondary evidence.

Dying declaration should be free from tutoring

The Court emphasized that a dying declaration must be free from tutoring, prompting, or imagination. However, it noted that the statement made by the deceased had many people present during its recording, making it challenging to rule out any influence on the statement's authenticity.

The Court finally concluded that “the questions that a court must ask when dealing with a case concerning a dying declaration, as listed out by this Court in Irfan@Naka v. State of U.P. along with the principles culled out hereinabove form the complete gamut of the consideration required on part of a court when deciding the weightage to be awarded to a dying declaration.”

Applying all these principles to the case at hand, it was observed that questions regarding the identity of the person who recorded the dying declaration, its accuracy, identity of individuals when the declaration was recorded, all of it was not certain which raised doubts about its authenticity.

In the present case, the court noted that the prosecution's case primarily relied on ocular evidence through numerous independent witnesses. However, the court found that the testimonies of these witnesses, although eyewitnesses, failed to establish the guilt of the accused persons beyond reasonable doubt. Contradictions emerged in their testimonies regarding the number of persons in the unlawful assembly, the circumstances of the deceased's arrival, and the events that unfolded.

In light of the above, the Court allowed the appeal against the HC and upheld the judgment of the trial court which had acquitted them.

Related reports - 'Great Caution Needed' : Supreme Court Lists Out Factors To Be Considered While Relying On Dying Declarations

Principles To Be Followed In Case Of Multiple Dying Declarations: Supreme Court Explains

Case title: Manjunath v. State of Karnataka

Citation: 2023 LiveLaw (SC) 961

Click Here To Read/Download Judgment