Bombay HC: Dying Declaration can’t be Rejected on Ground that it wasn’t Read Over to Declarant

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April 02, 2018

Case name: Ganpat Bakaramji Lad v. State of Maharashtra

Date of Judgement: March 09, 2018

In this case, the Full Bench of Bombay High Court has rendered an in-depth analysis of the law relating to and the essentials of a dying declaration. In the case, in view of divergence of opinion, the seminal issue that was raised 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?

Also read Dying Declaration- Law and Important Judgments

The High Court in the case extensively relied on Apex Court’s decision in the cases of Khushal Rao v. State of Bombay[1] and Laxman  v.  State   of   Maharashtra[2]. In Khushal Rao’s case, the Apex Court held that the statement made by a person who is in danger of losing his life, as to the cause of his death or as to the transaction which resulted in his death becomes a relevant fact upon his death. It held that such a person is not expected to tell lies at such serious and solemn moment. In Laxman’s case, the Apex Court opined that the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth.

The Court in the case enumerated the principles to be kept in mind in respect of dying declaration as under:

  • ­That it is not a weaker kind of evidence and it stands on the same footing as other evidence
  • That there is no absolute rule of law that it cannot form the sole basis of conviction unless corroborated by other independent evidence.

The Court also framed three questions to be considered while determining evidentiary value of dying declaration as under:

  1. Whether a declarant had an opportunity to observe and identify the assailant or the accused?
  2. Whether   a   declarant   was   in   a   conscious   and   fit condition at the time of recording the statement?
  3. Whether   the   Court   is   so   convinced   of   the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?

The Court further observed that while considering the aforesaid three questions, the Court has to keep in mind the rules of caution as under:

(a) The   provision   has   been   made   by   the   Legislature, advisedly as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence.

(b) The statement made by the declarant is not on oath and is not subject to cross­-examination to test its veracity.

(c) The   declaration   is   not   the   product   of   tutoring, prompting, imagination or vindicative.

(d)In case of any doubt or suspicion, it should not be      acted upon without corroborative evidence. Each case must be decided on its own facts keeping in view the circumstances in which the dying declaration is made.

Conclusion

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 recorder

It can be oral as well as written.  In case of oral dying declaration, the question of existence or insistence upon reading over an explaining the declaration to the deceased does not arise.

That 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.

In the case, the Full Bench of the Bombay High Court rested the issue by stating as under:

In our view, it would be unjust to reject the dying declaration only on such hyper technical view, which is hardly of any help in the matter of criminal trials.

In view of above, we answer the question referred to us as under:

A dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.

The entire case can be accessed here.

[1] AIR   1958   SC   22

[2] (2002) 6 SCC 710