A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872 and it alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. This extensive judgment was passed by the Hon’ble supreme court of India in the case of Naresh Kumar v. Kalawati and others [CRIMINAL APPEAL NO. 35 OF 2013] by Justice NAVIN SINHA.
The appellant was the brother of the deceased who charged the respondent 1 and 2 under Sections 498A and 302/34 I.P.C., affirmed by the High Court. The case of the prosecution was based on circumstantial evidence consisting of the dying declaration of the deceased. While the respondents were acquitted as the dying declaration was held not to have been proved in accordance with law and it did not inspire confidence. It vacillated between blaming the husband and the sisterinlaw, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration.
The court stated that “Though the discretionary jurisdiction of this Court under Article 136 of the Constitution is very wide, it has been a rule of practice and prudence not to interfere with the concurrent finding of facts arrived at by two courts, by a reappreciation of evidence, to arrive at its own conclusion, unless there has been complete misappreciation of evidence, or there is gross perversity in arriving at the findings, causing serious miscarriage of justice. If the view taken by two courts is a reasonably possible view, this Court would be reluctant to interfere with a concurrent order of acquittal.”
The court considered the facts of this case and stated that “the facts of the present case in the background of the aforesaid enunciation of the law, to examine if the impugned orders call for interference by us, or not. The deceased was married to respondent no. 2 about 1½ years ago. She suspected a promiscuous relationship between the respondents. The deceased even after 1½ of marriage was unable to conceive. A probable defense has been taken that she committed suicide out of frustration.”
Giving the benefit of doubt to the accused, the court stated that “If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of the doubt shall have to be given to the accused. Therefore, much shall depend on the facts of a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.”
The court dismissed the appeal stating that “considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remain suspect. It would not be safe to simply reject the probable defense of suicide, to reverse the acquittal and convict the respondents.”