Three Dying Declarations and Uncertified WhatsApp Audio
In a murder trial in Gaya, the victim, Sunita, suffered 70% burns. She made three statements before dying at 11 pm: at 7:10 pm to the Naib Tehsildar at the hospital, recorded in the presence of a doctor but without a fitness certificate; at 8:00 pm to the investigating officer, later reduced to writing; and at 9:30 pm to her mother, naming her husband and mother-in-law as assailants. The Naib Tehsildar's record says she was 'conscious and oriented', but the doctor's endorsement is illegible. The prosecution also relies on a WhatsApp audio message sent by Sunita to her brother at 6:50 pm, downloaded by the IO on his mobile phone, with no certificate under Section 65B(4) of the Evidence Act / Section 63(4) of the Bharatiya Sakshya Adhiniyam, and on a call detail record showing the husband's location near the house. The defence says the mother's statement is hearsay and the electronic evidence is inadmissible.
1. How should the court evaluate the three dying declarations? Are they admissible, and which one should be preferred if they conflict?
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A statement made by a person as to the cause of her death is admissible under Section 32(1) of the Indian Evidence Act, now Section 26 of the Bharatiya Sakshya Adhiniyam, even though the maker is dead. A dying declaration need not be in question-and-answer form, need not be recorded by a Magistrate, and need not be corroborated. But the court must be satisfied that the statement was voluntary and made when the deceased was mentally fit. Multiple declarations must be read together; consistency strengthens the prosecution, while material inconsistency weakens it.
The first statement to the Naib Tehsildar is admissible. The absence of a separate fitness certificate is not fatal if the recorder or the doctor deposes that the victim was conscious and able to speak. The Naib Tehsildar's record says she was conscious and oriented; the doctor's illegible endorsement is a defect in proof, not an automatic ground for exclusion. The doctor can be examined, or the hospital record can be used to establish fitness. The second statement to the IO is also admissible because Section 162(2) CrPC expressly preserves a statement falling under Section 32(1); it is not barred by the rule against police statements. But its weight is less because it was recorded by an investigating officer, after the first statement, and may be affected by tutoring. The third statement to the mother is not hearsay in the strict sense; it is a dying declaration and falls within Section 32(1). The mother is an interested witness, so her evidence requires caution, but it is not inadmissible.
If the declarations consistently name the husband, the court may rely on them even without corroboration. If they conflict, the first statement recorded by an independent official, close in time and in the presence of a doctor, is generally preferred. The mother-in-law's name appears only in the last statement; that may be an improvement. The court should scrutinise the time gap, the victim's condition, and the possibility of prompting. It may convict the husband on the consistent declarations and acquit the mother-in-law if her role is not consistently stated. The rule of prudence, not a rule of law, requires corroboration where the declaration is suspicious.
2. Is the WhatsApp audio message admissible without a Section 65B(4) certificate? What is the effect of the IO downloading it on his own phone?
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A WhatsApp audio message is an electronic record. To prove its contents, the prosecution must satisfy the requirements of Section 65B of the Evidence Act, now Section 63 of the Bharatiya Sakshya Adhiniyam. If the prosecution produces a copy, printout or download rather than the original device, a certificate identifying the electronic record, describing the manner of its production, and giving the prescribed particulars is mandatory. The certificate is a condition of admissibility, not a mere formality. The IO downloaded the audio on his own mobile phone; that is a copy, not the original. Without a certificate, the download is ordinarily inadmissible.
The position may be different if the brother produces the original phone on which the audio was received and proves that the message was received from the victim. The original electronic record can be proved by the owner or custodian of the device, and the court can verify the device. Even then, the prosecution should obtain a certificate in the prescribed form to avoid technical objections. The IO's oral evidence that he downloaded the file does not cure the absence of the certificate. The defect can be cured if the certificate is produced during trial before the judgment, but not after the case is closed.
The audio may itself be a dying declaration if it relates to the cause of death and the victim's voice is proved. But admissibility as a dying declaration does not dispense with the requirement of proving the electronic record. The CDR is also an electronic record; it is admissible only with a certificate from the service provider or the person in charge of the relevant device. The CDR showing the husband near the house is circumstantial evidence; it does not prove murder by itself. The court should exclude the uncertified WhatsApp download, admit the CDR if properly certified, and decide the case on the remaining evidence.
3. If the doctor does not support the victim's fitness, can the first declaration still be acted upon? How should the court deal with the mother's statement and the medical evidence together?
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The absence of a fitness certificate is not fatal, but a positive medical opinion that the victim was unfit or unconscious at the relevant time is a serious blow. The court must decide whether the declaration was made when the victim was capable of understanding the questions and giving rational answers. The Naib Tehsildar's recital of 'conscious and oriented' is evidence, but it is not medical evidence. If the doctor who treated her deposes that she was not fit, the first declaration loses much of its value. The court may still act on it if other circumstances-such as the detailed nature of the statement, the victim's ability to identify persons, and the absence of tutoring-show that it was voluntary and true. But the court must be cautious; a doubtful dying declaration cannot be the sole basis of conviction.
If the first declaration is weakened, the third statement to the mother becomes important. It is admissible, but the mother is an interested witness and the statement was made late, after two earlier statements. The court should compare the names, the sequence, and the descriptions in all three statements. If the mother's version is consistent with the first, it may provide reassurance. If it introduces new names or details, the court should treat those parts as improvements. The medical evidence about 70% burns and the victim's condition at 7:10 pm, 8:00 pm and 9:30 pm is relevant to voluntariness. The CDR and the WhatsApp audio, if admissible, may corroborate the presence of the husband, but they do not prove the act of burning.
The correct approach is not to accept or reject all the declarations together. Each statement must be tested separately. The court may rely on the consistent core and discard the inconsistent fringe. If the husband is named in all three, his conviction may rest on the dying declarations, subject to the court's satisfaction about fitness. If the mother-in-law is named only in the last statement, she is entitled to the benefit of doubt. The court should also consider whether the oral statement to the mother was a product of suggestion, given that she was a close relative and the police were present.