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'Is Dying declaration not applicable to Hindus?', High Court of Kerala rejected the Contention legally and theologically [Read the Judgment]

Gaurav Pathak
20 Sep 2014 3:51 AM GMT
Is Dying declaration not applicable to Hindus?, High Court of Kerala rejected the Contention legally and theologically [Read the Judgment]
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The Kerala High Court refused to accept the contention that dying declaration in the eyes of law is not applicable to Hindus, as there exist no belief in Hindu religion that they will meet their Maker after death.

Hearing a case where in the trial court had convicted the accused for pouring kerosene on his wife and setting her on fire, causing her death mainly relying on her Dying Declaration. The High Court maintained both the conviction and quantum of sentence.

The accused contended in the appeal that "theory that a person facing death will not tell lie since he would not meet his Maker and face the judgment with a lie in his mouth, will not apply to Hindus as there is no belief among Hindus that after death he will meet his Maker and he will have to account for his deeds and face the judgment."

Dealing with the contention raised from the accused that dying declaration won't apply to Hindus, Justice KT Sankaran quoted Garuda Purana  also for rejecting the contention.

The Court then said, "We are of the view that the contention put forward by the learned counsel for the appellant that (a) Hindus have no faith thatthey would, after their death, meet the Maker and (b) that they haveno faith that they are accountable for their deeds to the Maker, isunsustainable.For the aforesaid reasons, we reject the contention raisedby the learned counsel for the appellant that the doctrine of "nemomoriturus praesumitur mentire" (a man will not meet his Maker witha lie in his mouth) will not apply to Hindus."

In Para 35 of the Judgment it is held as follows;

The law of evidence contained in other statutes making specific provisions would also apply in cases where such statutes are applicable. So long as no other statute which provides for a separate rule of evidence in the case of Hindus is brought to our notice, it has to be held that the rules of evidence as provided in the Indian Evidence Act would apply to all citizens of India in the territories to which it apply, irrespective of the religion of the party or parties concerned. Section 32 of the Indian Evidence Act in particular would apply to all the citizens irrespective of their religion, caste and creed. If it were to be held that Section 32 and the principles of dying declaration would not apply to Hindus, we are afraid it would offend Article 14 and 15 of the Constitution of India besides being contrary to the spirit of Article 44 of the Constitution of India"

The accused was convicted under S. 302 of the Indian Penal Code and the dying declaration made by his wife was considered to be admissible as evidence by the High Court.

The accused had questioned the validity of the dying declaration by saying that it was not made in presence of the Judicial Magistrate.

The Court refused to accept the contention and cited plethora of judgments delivered by the Supreme Court wherein dying declaration was made admissible even when there was no judicial magistrate present.

The High Court also criticized the manner in which the wound-certificate was written by the doctor and highlighted the importance of wound-certificate in medico-legal cases.

The accused had a belief that his wife was having an illicit relationship with another man after which he set her on fire. She sustained 95% burn injuries and died in the hospital.

The act was witnessed by persons who were also relatives of the deceased and the accused questioned their oral evidence presented by them. However, the Court took the view that "There is no reason to doubt the truthfulness of the evidence tendered by them."

Live Law has covered the aspect of Dying Declartion before, more can be read here

Can a Dying Declaration be split up to segregate the case of one accused from the case of other?

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