Three dying declarations, a mobile-phone video, and a missing certificate
On 12 August 2023, Sunita, aged 24, was brought to a hospital in Jodhpur with 75% burns. She died on 14 August. Three statements were attributed to her. First, at the hospital, she told her mother in the presence of a nurse that her husband and mother-in-law had poured kerosene on her. Second, at 9 p.m. on 12 August, a police sub-inspector recorded a statement in the burns ward; no doctor was present, but a nurse wrote 'patient conscious' on the pad. Third, at 11 a.m. on 13 August, a Judicial Magistrate recorded a declaration in which Sunita said, 'My husband set me on fire; my mother-in-law was not present.' The Magistrate endorsed that the doctor had certified her fit to make the statement. A video of the Magistrate's declaration was shot by the Magistrate's clerk on his mobile phone, transferred to a CD, and produced in court without a certificate under Section 65B of the Evidence Act. The defence argues that the first two statements are inadmissible because they were not recorded by a Magistrate, that the Magistrate's declaration is unreliable because Sunita was on morphine, and that the mother is an interested witness.
1. Are the three statements admissible as dying declarations, and how should the court resolve their inconsistency?
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A statement of a dead person as to the cause of her death is admissible under Section 32(1) of the Evidence Act. It need not be recorded by a Magistrate; an oral statement to the mother or a statement recorded by a police officer is admissible if proved. Section 25 does not apply because the maker is not the accused and the statement is not a confession. The Magistrate's declaration is also admissible and carries the presumption under Section 80, though that presumption is not conclusive. The fact that Sunita was on morphine affects weight, not admissibility; the Magistrate's endorsement of the doctor's fitness certificate supports voluntariness. The three statements are inconsistent about the mother-in-law. The court must examine each independently, look for consistency on the core facts, and consider the condition of the declarant. It may accept the Magistrate's declaration and reject the oral statement on the mother-in-law, or accept both if the discrepancy is explained. The mother's interest affects her credibility but does not make her evidence inadmissible.
2. Can the CD of the video be used without a Section 65B certificate? How may the video be proved?
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A CD containing the video is a secondary electronic record. Under Section 65B(4) of the Evidence Act (Section 63(4) BSA), it is inadmissible without a certificate from the person in charge of the device, identifying the record and stating the conditions of production. The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal held the certificate to be mandatory. The original written declaration is primary evidence and can be proved by the Magistrate. The video can be proved by producing the mobile phone itself and a certificate, or by examining the clerk and the Magistrate. Without the certificate, the CD cannot be used. The defect is curable: the prosecution may produce the certificate later, but until then the video cannot be relied on. The Magistrate's oral testimony about what he recorded is independent of the CD.
3. Can a conviction rest solely on the Magistrate's dying declaration? What is the position of the husband and the mother-in-law?
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A dying declaration can be the sole basis of conviction; it is not a weak kind of evidence, and corroboration is not mandatory if the court is satisfied that it is truthful and voluntary. But where there are multiple declarations, the court must scrutinise them carefully. Here the Magistrate's declaration is the most reliable because it was recorded after a fitness certificate, in a question-and-answer form, and without police influence. If the court accepts it, it can convict the husband. The mother-in-law stands on a different footing: the Magistrate's declaration expressly excludes her, and the only material against her is the oral statement to an interested mother. That inconsistency creates doubt, and she should be acquitted. The presumption under Section 113B of the Evidence Act, if dowry demand is proved, may apply, but it is rebuttable and cannot override a reliable dying declaration that excludes her.