Three Inconsistent Dying Declarations and an Uncertified Video
Sunita, 28, was brought to the district hospital on 4 May 2024 with 85 per cent burns and died on 7 May. Three accounts exist. First, her mother says that on the way to hospital Sunita said, 'Ajay poured kerosene and lit me'. Second, a police constable recorded a statement under Section 161 CrPC on 5 May in which Sunita said she caught fire while lighting a stove and that no one was responsible. Third, on 6 May a judicial magistrate recorded a dying declaration in which she said she caught fire while cooking and denied that her husband was involved. The magistrate certified that Sunita was conscious and oriented, but the doctor's note at 9 a.m. recorded 'morphine given, drowsy'; the declaration was recorded at 11 a.m. A neighbour, Rekha, made a 40-second video on her phone on 4 May in which Sunita named Ajay. The phone is produced and Rekha is examined. The police also produce a CD copy of the video, which was sent to them on WhatsApp. No certificate under Section 65B is filed. The defence attacks the mother and Rekha as interested witnesses.
1. How should the court evaluate three inconsistent dying declarations? Can it accept one and reject the others?
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Nature of the evidence. A dying declaration is admissible under Section 32 of the Indian Evidence Act (now Section 26 of the Bharatiya Sakshya Adhiniyam, 2023) and, if accepted, can be the sole basis of conviction. It is not sworn evidence, cannot be tested by cross-examination, and is therefore admissible only when the court is satisfied that it was voluntary, truthful and made by a person in a fit state of mind. That is a question of fact in each case, and the court acts as a careful scrutiniser, not as a mere postman.
Multiple declarations. There is no rule that all declarations must be rejected merely because they do not tally. The correct course is to examine each independently for the existence of a consistent substratum, the physical and mental condition of the declarant, the time and place, and the presence of any interested or influencing person. Where one declaration is coherent, voluntary and made before a magistrate after proper certification, and the others are oral or informal, the court may act on the better one and disregard the rest, but it must record reasons for preferring it.
Application. Here the magistrate's declaration and the police statement agree on accidental burning, while the mother's version and the video are inculpatory. That pattern - the formal, impartial record saying accident and the interested or informal records saying murder - is dangerous for the prosecution. Conversely, the defence must explain why a dying woman would falsely exculpate her husband; fear or family pressure is a plausible explanation but must be proved. The 'drowsy' note of 9 a.m. weakens the magistrate's certificate unless the doctor deposes that the effect had worn off by 11 a.m. The court should call for the hospital record and examine the doctor. On these facts, no conviction can safely rest on any single declaration without independent corroboration.
2. Is the video admissible without a Section 65B certificate? Distinguish between the original on the phone and the CD copy.
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Two different exhibits. The 40-second clip on Rekha's phone, and the CD supplied by the police, stand on different footings. Electronic records are proved under Sections 65A and 65B of the Evidence Act (now Sections 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023). Section 65A requires the substantive law of Section 65B to be followed; Section 65B(4) requires a certificate for the admissibility of computer output produced as secondary evidence, identifying the record, describing the manner of its production, and dealing with the operation of the device.
The original. If the phone itself is produced, identified by Rekha as the device on which she recorded the clip, and the clip is played in court, the record is being proved as primary evidence. Rekha's ocular evidence explains the making of the record and no Section 65B(4) certificate is required. The court should verify the device, the date metadata, and that the file was not edited.
The copy. Once the clip was forwarded on WhatsApp and then burnt to a CD by the police, the CD is computer output - secondary evidence. Without a Section 65B(4) certificate from the person in charge of the device or from the person managing the relevant activity, the CD is inadmissible and cannot be used to corroborate or contradict the original. The defect is curable: the court should allow the prosecution to file the certificate rather than decide the case on the defective exhibit, unless the trial has concluded.
Weight. Even if proved, the video is a statement by the deceased about the cause of death and may be treated as a dying declaration in electronic form; it must still pass the tests of voluntariness, fitness of mind and absence of tutoring.
3. Assuming the declarations are the only evidence, can Ajay be convicted? Set out the reasoning the court must record.
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No conviction without a safe foundation. The trial court must proceed step by step. First, it must decide whether the death was homicidal at all. If the burns were accidental, the inculpatory declarations are false and the case fails; the post-mortem, the scene of occurrence, the presence of kerosene, the stove, and the burn pattern must be examined. Second, if the death was homicidal, the court must identify which declaration is trustworthy.
Weighing the declarations. The mother's oral declaration is the earliest and closest to the event but is made by an interested witness and is easily fabricated or misunderstood. The Section 161 statement is a police statement; it is not substantive evidence, it can be used only to contradict under Section 145 of the Evidence Act and Section 162 CrPC, and it cannot be used as a dying declaration unless independently proved by the person who recorded it and accepted by the court. The magistrate's declaration carries the highest presumption of regularity, but the presumption is rebuttable, and the 'drowsy' note must be explained by the doctor who treated Sunita. If the doctor says the morphine effect had passed and Sunita was fit, the magistrate's declaration should ordinarily be preferred; but the reason for the deceased's exculpation of her husband must still be considered.
Conclusion. A conviction resting solely on the inculpatory declarations, against a certified declaration to the contrary, would be unsafe. If the court discards all the declarations, there is no evidence and Ajay must be acquitted. If it accepts one, it must record a specific finding on voluntariness, fitness, and why the contrary declarations are rejected; corroboration is not a legal requirement but is highly desirable in a case of this quality.