Dying Declaration Can’t Be Rejected Merely Because It Wasn’t Read Over To Declarant: Bombay HC (FB) [Read Judgment]

A full bench of the Bombay High Court has held that a dying declaration cannot be rejected merely because it was not read over to the declarant.

The three-judge bench of Justice RK Deshpande, Justice SB Shukre and Justice MG Giratkar of the Nagpur bench held the same after a division bench of the high court had framed a question for reference to a larger bench, the question was: “Whether a dying declaration can be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded?”

Background

In the case of Shivaji s/o Tukaram Patdukhe v. State of Maharashtra, a bench headed by Justice PV Hardas rejected the dying declaration recorded by a Special Executive Magistrate on the basis of which the conviction was recorded by the Sessions Court for the offence punishable under Section 302 of IPC and was heavily relied upon by the prosecution, to maintain it. The court set aside the conviction and granted acquittal holding that there is no convincing evidence as the dying declaration was never read over to the deceased.

In a similar case, another bench headed by Justice PV Hardas had rejected the dying declaration stating the same needs endorsement and due to lack thereof, it does not inspire the confidence of the court. The bench had also relied upon the decision of the Supreme Court in the case of Shaikh Bakshu and others v. State of Maharashtra.

Disagreement by another bench

A division bench of Justice AB Chaudhari and Justice PN Deshmukh in a case similar to above two cases, (Ganpat Bakaramji Lad v. The State of Maharashtra) expressed disagreement with the above two decisions holding that it is neither the ratio nor the obiter dicta of the decision of the apex court in Shaikh Bakshu's case that the dying declaration has to be rejected only because the contents of it were not read over and admitted to be correct by the declarant.  The division bench took the view that it would be unjust to reject the entire dying declaration duly proved and believed, only for the reason that it was not read over and admitted to be correct by the declarant.

Thereafter, the division bench framed the said question for reference to a larger bench.

Full bench judgment

Going through the facts of the case in Ganpat Lad and other judgments of the high court as well as the Supreme Court, the full bench noted:“Neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribe any particular format in which a dying declaration is to be recorded.  It can be oral as well as written.  In case of an oral dying declaration, the question of existence or insistence upon reading over and explaining the declaration to the deceased does not arise. If that be so, how can such insistence be in respect of written dying declaration? 

It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. We are, therefore, unable to hold such requirement as mandatory and that in the absence of it, the dying declaration would become unreliable or unsustainable. We, therefore, subscribe to such a view taken in the referring judgment in the case of Ganpat Lad.”