Two Dying Declarations, an Extra-Judicial Confession and a Recovered Shirt
On 14.08.2024 a 34-year-old woman was set on fire in her matrimonial home in Khordha district and reached the district hospital at 6.40 p.m. with 86 per cent burns. At 6.55 p.m. the doctor endorsed that she was conscious, oriented and fit to make a statement, and at 7.05 p.m. recorded a dying declaration in question-and-answer form in which she named her husband as the man who poured kerosene and lit the match. Relatives of the husband arrived at about 7.50 p.m. At 8.10 p.m. a sub-inspector recorded a second dying declaration, in their presence, in which she named her mother-in-law instead. She died at 4.30 a.m. on 16.08.2024. On the accused's information a kerosene-stained shirt was recovered three days later from a locked almirah in the room he shared with his mother; the forensic report shows kerosene residue and no blood. The ward member to whom the accused allegedly said on the night of the fire 'I have made a mistake' was examined, but his statement was recorded only on 05.09.2024, and he admitted a pending land dispute with the accused.
1. Which dying declaration should the court act upon, and can a conviction rest on a dying declaration alone?
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Both statements are admissible. A dying declaration falls within Section 32(1) of the Evidence Act (now re-enacted in the Bharatiya Sakshya Adhiniyam, 2023), and it is settled that it need not be recorded by a magistrate and is not inadmissible merely because a police officer recorded it (Khusal Rao v. State of Bombay). What the court must be satisfied about is that the maker was conscious, had a clear mind, and that the statement was voluntary and true. A doctor's certificate of fitness is valuable evidence but is not indispensable (Laxman v. State of Maharashtra).
On these facts the first statement carries the better indicia of truth. It was recorded twenty-five minutes after admission, by the treating doctor, in question-and-answer form, with a contemporaneous endorsement of orientation, and before any relative of the husband had arrived. The second was recorded an hour later, in the presence of those relatives, after the victim's condition had deteriorated, and it shifts the identity of the assailant altogether. That shift is inexplicable if the first statement was true, and the presence of interested relatives supplies the likely explanation. The court should prefer the first, reject the second for recorded reasons, and not merely count the number of declarations.
An 86 per cent burn does not by itself make a certified statement unreliable, but it obliges the court to test internal consistency, specificity and the absence of prompting. A truthful and voluntary dying declaration can be the sole basis of conviction without corroboration (Paniben v. State of Gujarat).
2. What is the evidentiary value of the accused's alleged statement to the ward member?
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The words 'I have made a mistake' are an extra-judicial confession. Such confessions are admissible, but they are the weakest species of evidence and are accepted only with great caution. Three requirements must be met: the words must be proved with precision, the witness must be a person of credit, and the confession must be shown to be voluntary and not the product of inducement, threat or a bargain.
Each of them is doubtful here. First, the words themselves confess nothing specific. 'I have made a mistake' is equally consistent with regret at a quarrel, with a failure to save the woman, or with an admission of negligence; it is not an admission of pouring kerosene and lighting a match. A confession must be read in its own words and not enlarged by inference. Second, the witness had a subsisting land dispute with the accused, which supplies a motive to implicate him. Third, the statement was recorded only on 05.09.2024, twenty-two days after the incident, which suggests deliberation rather than the natural reaction of a witness to a startling event.
An extra-judicial confession cannot by itself sustain a conviction. At its highest it can corroborate other evidence. Since this statement does not even correspond to the act alleged, it corroborates nothing and should be kept out of the chain of circumstances.
3. Is the recovery of the shirt admissible, what weight does it carry, and how should the court dispose of the case?
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Only so much of the information given by the accused as leads distinctly to the discovery is admissible: the fact discovered must follow from the information and must not already be known to the police. Recovery from a locked almirah in the room the accused occupied is, on the face of it, a discovery within his knowledge, and the kerosene-stained shirt is a circumstance that fits the prosecution case.
Its weight, however, is modest. The almirah was in a room shared with the accused's mother, so exclusive control is not established. The shirt was not shown by any independent evidence to be the garment worn at the time of the fire. Kerosene residue is consistent with ordinary household use. The absence of blood is neutral, but it does nothing to strengthen the link. The recovery is therefore corroboration of a weak kind.
The case really turns on the first dying declaration. If the court accepts it for the reasons already given, the charge of murder is proved beyond reasonable doubt and the accused should be convicted under Section 103(1) BNS on the dying declaration read with the recovery; the second declaration and the extra-judicial confession are rejected. If, on the other hand, the second declaration raises a reasonable doubt about the voluntariness of the first, the benefit of that doubt must go to the accused and he must be acquitted, because suspicion, however strong, cannot replace proof.