There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration: Supreme Court of India
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 appellant brother of the deceased is in appeal law and husband of the deceased of the charge under Sections The deceased suffered 95% burn injuries on 17.09.1991 at circumstantial evidence consisting of the dying declaration of the 4. Shri Rajendra Singhvi learned counsel for the appellant the matrimonial home within seventeen months of her marriage the deceased had stated that she had been put on fire by her upon her while she was making tea. Soon thereafter she made another statement to P.W. 25 the Assistant Sub­Inspector in presence of the said Dr. Anant Sinha and who also signed the statement that her elder sister­in­law had poured kerosene over was taken on her statement as her fingers had suffered burn injuries. The mere absence of any endorsement in the dying None of the relatives of the deceased were present at that time The mere failure of the prosecution to examine Dr. Anant Sinha all efforts to have the Doctor summoned. P.Ws. Nos. 3 4 and 5 the mother the sister and the appellant have also stated that the The respondents have also wrongly been acquitted of the charge under Section 498A. Reliance was placed upon State of Rajasthan vs. Parthu12 SCC 754 Sukanti Moharana vs State of Orissa 9 SCC 163 and Heeralal vs. State of Madhya Pradesh 12 SCC 671 in support of the dying Shri Ramesh Gupta learned Senior Counsel appearing for deceased was only stated to be conscious. There is no evidence and that he was present during recording of the same. The her on fire. There was no reference to the sister­in­law or any demand for dowry. Subsequently she stated that she had been on fire by her sister­in­law. Initially the deceased did not name named respondent no.1 in her statement to P.W. 25. The respondents had taken the defence that the deceased suspected herself on fire. The view taken by two courts being a reasonably and have also perused the evidence available on the record Though the discretionary jurisdiction of this Court under Article rived at by two courts by a reappreciation of evidence to arrive at of evidence or there is gross perversity in arriving at the findings causing serious miscarriage of justice. If the view taken by two vs. Sanjay Thakran & Ors. 3 SCC 755 it was observed: arrived at by any reasonable person and therefore because two views are possible the court of appeal is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court in such circumstances to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the ac­ 7. We shall now consider the facts of the present case in the the impugned orders call for interference by us or not. The suspected a promiscuous relationship between the respondents The deceased had suffered 95% burn injuries at home on the police at the hospital that she had been set on fire by her brother while making tea. The MLC records her as being fully conscious. It is signed only by the Doctor who has not been examined. The deceased is then stated to have made a dying husband had brought her to the hospital. It bears her right toe impression as her hands were burnt. The statement bears the fire by respondent no.1. P.W. 5 has stated that both the for conviction if it has been made voluntarily and inspires confidence. If there are contradictions variations creating doubts dying declaration is suspect or the accused is able to create a on hearsay as deposed by P.W. 20 that she was set on fire by because his signature has been identified by P.W. 19 cannot 11. P.W. 25 who recorded the dying declaration does not state that was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying In Paparambaka Rosamma and others vs. State of Andhra Pradesh 7 SCC 695 distinguishing between ment”. It has come on record that the injured Smt formed the post­mortem stated that the injured had lier the prosecution case solely rested on the dying declaration. It was therefore necessary for the prose­ end by Dr Smt K. Vishnupriya Devi did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration that “patient is conscious while recording the state­ be safe to accept the dying declaration as a fit state of mind. In medical science two stages In the facts and circumstances of the present case considering that the statements of the deceased have vacillated make the dying declaration including the presence of the Doctor the veracity and truthfulness of the dying declaration remains 14. Parthu is distinguishable on its facts. Despite the absence of a certificate of fitness of state of mind on the dying 15. Sukanti is again distinguishable on its own facts as been made on the dying declaration but there is contemporaneous evidence in the form of Ext. 9 1 The Doctor who recorded the dying and in a fit mental condition to make such a clear that the aforesaid dying declaration could be the said statement gave a vivid account of the In Heeralal noticing the discrepancies in the two dying declarations it was held that the conviction could not be 17. The appeal is therefore dismissed