In a notable judgment, a 2 judge bench comprising of Justices Adarsh Kumar Goel and Dipak Misra have given a fresh dimension to the Dying Declaration (DD) Jurisprudence in the country. Via this judgment, the bench speaking through Goel J opened the admissibility scheme of DD from the maker for his/her death to a statement made as DD explaining circumstances for death of any other person as well.
The matter pertained to homicide by the accused husband of the deceased wife by pouring kerosene in presence of his mother in law. The deceased wife who succumbed to the burn injuries and the mother both made separate DD before authorities. However, the fitness criteria for the DD made by the deceased was omitted by the concerned police officer. The trial court convicted the accused u/s 302 and sentenced to Life but refused to admit the DD made by the deceased due to lack of thumb impressions or signatures. The DD made by the mother of deceased was however admitted and relied upon. On appeal, the Bombay High Court, Nagpur Bench confirmed the conviction and sentence but accepted the DD made by the deceased holding that in such urgency failure to obtain medical evidence for fitness was not material to reject reliability.
The SC discussed 2 important questions i.e Reliability of DD made by the deceased and Admissibility and Reliability of DD by the mother. As to the first question, the DD made by the deceased was rejected on grounds of procedural infirmities. Sec 32(1) of the evidence act was discussed and the second question was rephrased in para 19 –
“Question is what happens when two deaths have taken place in the same transaction and circumstances of the transaction resulting in one death is closely interconnected with the other death.”
It was held that “Admittedly, the DD of Prabhabai is admissible as to cause of her death as well as the circumstances of the transaction which resulted in her death. Such statement may not by itself be admissible to determine the cause of death of anyone other than the person making the statement. However, when the circumstances of the transaction which resulted in death of Page 9 of 18Page 10 Criminal Appeal No.1330 of 2009 the person making the statement as well as death of any other person are part of the same transaction, the same will be relevant also about the cause of death of such other person.”
In Para 21, it has been made clear –
“21. Thus, when a dying declaration relating to circumstances of the transaction which resulted in death of a person making the declaration are integral part of circumstances resulting in death of any other person, such dying declaration has relevance for death of such other person also.”
Referring to a few judgments, the bench recorded in Para 25 that
“25. It is thus clear that the DD is admissible not only in relation to the cause of death of the person making the statement and as to circumstances of the transaction which resulted in his death, if the circumstances of the said transaction relate to death of another person, the statement cannot be held to be inadmissible when circumstances of “his” death are integrally connected to the circumstances of death of such other person.”
Interestingly, the judgment makes no reference to Sec 6 of the Evidence Act, which is a dedicated provision to deal with res gestae or acts forming part of the same transaction. Nevertheless, this is a welcome decision opening up the phenomenon of DD to not only the person dying due to the act but by any person explaining the circumstances of the death.
Read the Judgment here.