Observing that unless a dying declaration is trustworthy, it cannot be made the basis for conviction, particularly if the person making it was not conscious and well-oriented while making the statement, the Bombay High Court recently granted bail to a man accused of allegedly murdering his wife by setting her on fire. His wife had left several dying declarations, oral as well as written, inconsistent with one another.
In one version, she claimed her husband had set her on fire. The incident occurred on January 7, 2016, at her matrimonial house. She died due to burn injuries at the Civil Hospital, Nashik.
“It is well settled that in case of plural dying declarations, they should be consistent with each other. Though it is said that a dying person does not speak lies, but there is no initial presumption that dying declaration contains the truth and nothing but the truth. The one who makes a dying declaration is not available for cross-examination and unless it is shown that a dying declaration is trustworthy, and the person making the declaration is conscious and well-oriented while making the statement, the dying declaration cannot be made the basis for conviction,” said Justice A M Badar.
In her dying declarations made before sub-inspector of Indira Nagar Police Station, Nashik, and the executive magistrate, the wife had said she sustained accidental burns by flaring of the stove. However, the uncle of the woman lodged a complaint against the husband and there was an attempt to record the statement of the wife again. Her statement was taken by the police again. In her declaration made later, she said she was set on fire by her husband, which is the oral declaration she allegedly made in front of her parents and uncle.
“In this case of plural dying declarations, one set of oral as well as officially recorded dying declaration points out accidental death whereas another set points out homicidal death. As such, both these sets of dying declarations are divergent and inconsistent on material particulars. With this evidence, the liberty of the applicant needs to be restored as trial will take its own time,” said the High Court. The court also raised questions on how the wife had been declared fit to make a statement on January 9, when she had been declared unfit a few hours earlier. “This is a question which will have to be answered in the trial after cross-examination of the medical officer,” said Justice Badar.
In one version, she claimed her husband had set her on fire. The incident occurred on January 7, 2016, at her matrimonial house. She died due to burn injuries at the Civil Hospital, Nashik.
“It is well settled that in case of plural dying declarations, they should be consistent with each other. Though it is said that a dying person does not speak lies, but there is no initial presumption that dying declaration contains the truth and nothing but the truth. The one who makes a dying declaration is not available for cross-examination and unless it is shown that a dying declaration is trustworthy, and the person making the declaration is conscious and well-oriented while making the statement, the dying declaration cannot be made the basis for conviction,” said Justice A M Badar.
In her dying declarations made before sub-inspector of Indira Nagar Police Station, Nashik, and the executive magistrate, the wife had said she sustained accidental burns by flaring of the stove. However, the uncle of the woman lodged a complaint against the husband and there was an attempt to record the statement of the wife again. Her statement was taken by the police again. In her declaration made later, she said she was set on fire by her husband, which is the oral declaration she allegedly made in front of her parents and uncle.
“In this case of plural dying declarations, one set of oral as well as officially recorded dying declaration points out accidental death whereas another set points out homicidal death. As such, both these sets of dying declarations are divergent and inconsistent on material particulars. With this evidence, the liberty of the applicant needs to be restored as trial will take its own time,” said the High Court. The court also raised questions on how the wife had been declared fit to make a statement on January 9, when she had been declared unfit a few hours earlier. “This is a question which will have to be answered in the trial after cross-examination of the medical officer,” said Justice Badar.
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