SC: Absence of fitness certificate by doctor is not fatal to dying declaration

The Hon’ble Supreme Court, on 4th September 2019, in the matter of Jagbir Singh v. State (N.C.T of Delhi) observed that even absence of the certificate by a Doctor about the patient being conscious and fit to give a dying declaration, is not fatal to act upon a dying declaration. However, the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

The Hon’ble Supreme Court observed that:

(Para 30) Principles regarding dying declaration can be culled out as follows:

  1. Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
  2. If there is nothing suspicious about the declaration, no corroboration may be necessary;
  3. No doubt, the court must be satisfied that there is no tutoring or prompting;
  4. 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;
  5. 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.
  6. 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;
  7. 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.
  8. 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?

When there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.(Para 31)

The first question, one must bear in mind, is whether the deceased was in a physical and mental condition to make a dying declaration.(Para 37)

Undoubtedly, it is true that the certificate by a Doctor about the patient being conscious and fit to give a dying declaration would go a long way in inspiring confidence of the court.(Para 37)

Even absence of the certificate by a Doctor about the patient being conscious and fit to give a dying declaration, is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.(This inference has been drawn on the basis of Para 37)

Under Section 32 of the Evidence Act any statement made by a person as to the cause of his death or to any circumstance of the transaction which resulted in his death would be relevant. Once it is proved that such statement is made by the deceased then it cannot be brushed aside on the basis that it is not elaborate or that it was not recorded in a particular fashion.(Para 41)

The principle that the statement is brief, would not detract from it being reliable. Equally, when there are divergent dying declarations it is not the law that the court must invariably prefer the statement which is incriminatory and must reject the statement which does not implicate the accused. The real point is to ascertain which contains the truth.(Para 41)

Copy of judgement: Judgement_04th-Sep-2019

-Adv. Tushar Kaushik 

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