The Real Point Is To Ascertain Which Contains The Truth: SC On Divergent Dying Declarations [Read Judgment]

In this case, there were three dying declarations made by the deceased. In the first two dying declarations, which were given by the deceased herself, no incriminatory role is attributed to the accused, while on third, he was squarely blamed.

In the Judgment disposing the appeal [Jagbir Singh vs. State NCT of Delhi], the bench comprising Justice Sanjay Kishan Kaul and Justice KM Joseph summarized the principles to be followed in cases were dying declaration is the sole evidence available. It said:

• Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court.

• If there is nothing suspicious about the declaration, no corroboration may be necessary; No doubt, the court must be satisfied that there is no tutoring or prompting;

• The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration

• Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established

The bench then noted that there may be cases where there are more than one dying declaration. The court said:

If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;

Thereafter, the bench noted that there can be cases like the instant one where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another.

"In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two."

The bench then explained the duty of the Court while encountering such cases:

"We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.

It further observed:

When there are divergent dying declarations it is not the law that the court must invariably prefer the statement which is incriminatory and must reject the statement which does not implicate the accused. The real point is to ascertain which contains the truth.

However, in the instant case, examining the facts and evidence on record, the bench held that the third dying declaration incriminating the accused is believable.

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