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Criminal Lawyer: Complete inconsistent dying declarations are not fatal to the prosecution in every case; SC.

Supreme Court of India

Justice K M Joseph and Justice Sanjay Kishan Kaul

The SC {JAGBIR SINGH v. STATE (N.C.T. OF DELHI)} holds that when a declaration is made, either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew Arnold that “truth sits upon the lips of a dying man” and no man will go to meet his maker with falsehood in his mouth will come into play. 

While culling out the law of dying declaration. It was held by the SC:

"A survey of the decisions would show that the principles can be culled out as follows:
a. Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
b. If there is nothing suspicious about the declaration, no corroboration may be necessary;
c. No doubt, the court must be satisfied that there is no tutoring or prompting;
d. 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;
e. 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;
f. However, there may be cases where there are more than one dying declaration. 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.
g. 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;
h. The third category of cases is that 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. i. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?"
It was held by the SC in case of complete inconsistency in dying declaration, the rest of material in evidence has to be looked into, then, on that basis the conclusion has to be drawn whether the incriminatory dying declaration is to be relied upon or not. Without doing that, the case of the prosecution cannot be thrown out, only on the basis of absolute inconsistency in dying declarations.
It was held by the SC that in case in hand the courts below were not in error in disregarding the statement attributed to the deceased in the MLC dated 24.01.2008 and the statement taken on the next day, i.e., on 25.01.2008. It was held that the incident, admittedly, took place towards in the evening of 24.01.2008. The appellant and the deceased were taken by the Police in the PCR vehicle to the hospital. It was held that it is the proximity of the appellant, which apparently stood in the way of the deceased, disclosing the truth of the matter. The appellant and the deceased continued to be in the same hospital on 25.01.2008 also. In this regard, in the dying declaration, relied upon by the prosecution, the deceased has stated that as the appellant had extended threat to her, she could not give a statement on the very same day. Apparently, this means that she has proceeded on the basis that the declaration made on 27.01.2008 is the first dying declaration which she is making. She has, in other words, not treated the statement made on 24.01.2008 at the time when she was admitted, as a declaration. So also, the statement made on 25.01.2008, she was operating under the threat extended by her husband. Both earlier dying declarations were discarded by the SC.
It was further held that in the dying declaration, the deceased has stated that the appellant caught fire when the fire erupted near the motorcycle as a result of the pipe of the petrol tank being taken out by the appellant. It was held that it is to be remembered that the case of the appellant is that the fire occurred when he had lit a biri. He had no case that the pipe of the petrol tank had been taken out thereby causing the fire. But PW29- Investigating Officer, visited the site on 24.01.2008, has deposed that the petrol pipe of the motorcycle had been detached from the place where it should be. As come in evidence, he has also stated that in the inner room, a can of kerosene oil was lying and the kerosene was lying spread on all the four sides of the can. It was held that there is no reason to disbelieve PW29 when he speaks about kerosene oil lying in the inner room and the can also. It was held that the version, as projected in the last declaration dated 27.01.2008, is clinchingly proved by this circumstance that kerosene was indeed the fuel used which caused the burn injuries and its position in the inner room is entire compatible with the dying declaration dated 27.01.2008. 
As the inconsistency in dying declarations got fully explained,  and last dying declaration is corroborated by other evidence on record. It was held that the conviction of the appellant was rightly arrived at, by courts below. Accordingly, the appeal was dismissed, and the conviction and sentence of the appellant was sustained by the SC.

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