Consistent & Reliable Dying Declarations Sufficient To Prove Guilt Of Accused: Kerala High Court

While pondering over the admissibility of dying declarations, the Kerala High Court on Wednesday ruled that consistent dying declarations if found to be very reliable, provides credence to each other and proves the guilt of the accused. A Division Bench comprising Justice Vinod K Chandran and Justice Ziyad Rahman accordingly dismissed an appeal in a matter where a dying woman had given four consistent declarations indicating that she was murdered by her brother-in-law.The Court opened its judgment with the principle of "Nemo moriturus praesumitur mentire", which translates into "A man will not meet his maker with a lie in his mouth". It was noted that the reason which lends credibility to a dying declaration is that 'a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath'.Background:The aforesaid observations were made in an appeal filed by a man accused of murdering his younger brother's wife. He was found guilty and thereby convicted to life imprisonment by the Sessions Court. According to him, it was a clear case of suicide by self-immolation after pouring kerosene over her body, since at the relevant time the deceased was depressed for various reasons. However, the deceased allegedly gave four dying declarations, explicitly holding the appellant responsible for her injuries. All the family members were inclined to believe this since they confessed that there were frequent disagreements between the deceased and the appellant. The appellant resided with the deceased's family in the same house. They deposed that a day before the incident, the duo had entered into a scuffle citing a sudden surge in the electricity bill. On the next day, she was found engulfed in flames near the entrance. All attempts to save her went in vain as she succumbed to her injuries a couple of days later. However, before her demise, she gave four dying declarations, to her son, her daughter, a doctor and the Judicial Magistrate respectively, pinpointing the appellant as the accused. As such, the appellant was found guilty of homicide by the Sessions Court, mainly relying on these dying declarations. Although the appellant tried to prove that the said dying declarations were not legally unsustainable, his efforts were futile. Upon perusing the submissions and the material placed on record, the Bench came to the conclusion that the death of the deceased was a homicide and it was the appellant who committed the said brutal act as put forward by the prosecution.The Court observed: "...the alternative theory of suicide is not substantiated as there are no materials even to instill a doubt in our mind in this regard." Other Important Observations:(a) Dying Declaration Not Given To Interested PersonsThe appellant vehemently argued that the alleged dying declaration was given to the deceased's son and daughter, apart from others. He used this to deny the credibility of such declaration on the ground that these were interested persons. However, the Court also remarked as such:"The son and daughter of the victim though closely related cannot be termed to be interested witnesses, especially since their interest would be only in bringing to book the assailant of their mother."Similarly, it was found that there was no material available to find them to be so hostile to their uncle as to falsely implicate him in the crime. Further, the Division Bench observed that the dying declarations were also given to a doctor and the Judicial Magistrate, both of whom are independent. (b) Deceased Was In Proper Mental State To Give Credible DeclarationThe appellant pointed out certain infirmities in the manner of recording of the dying declaration by the Judicial First Class Magistrate to argue that the deceased was not in a proper physical or mental state to give a dying declaration. However, the Court noted that the dying declaration was recorded after following the procedure contemplated i.e. after the doctor certified that she was fit to give such a statement and the same was recorded in the presence of the said doctor. Even though the contents of the same indicate certain difficulties for the victim in mentioning certain details, it contained sufficient materials indicating clearly the involvement of the appellant.(c) Declaration Given Immediate To The IncidentThe Court noticed that the first dying declaration given by the deceased was almost 15 minutes after the incident, which gives very little room for her to fabricate a story to implicate the appellant. "...the first dying declaration made was immediately after the incident i.e within just 15 minutes. This gives more strength to the prosecution case particularly because it was in close proximity of the commission of offence and, therefore, the chances of afterthought, manipulation, tutoring etc. can be safely ruled out." The Court noted that since the victim maintained the very same version in all the subsequent three dying...

Consistent & Reliable Dying Declarations Sufficient To Prove Guilt Of Accused: Kerala High Court

Hannah M Varghese

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