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Bombay High Court: Dying declaration can’t be rejected because it was not read to declarant


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Mumbai: The ruling was delivered by a full-bench comprising of Justice Ravi Deshpande, Justice Sunil Shukre and Justice Murlidhar Giratkar.  The bench said, “A dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.”

The judges have put forth a three-fold questionnaire, which they said must be considered by a Court while deciding the dying declarations. The questions according to the full bench are – Whether a declarant had an opportunity to observe and identify the assailant or the accused? Whether a declarant was in a conscious and fit condition at the time of recording the statement? and whether the Court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?

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The full bench said, “The absence of an endorsement in the dying declaration – (a) by a doctor regarding the fitness of mind of the declarant, or (b) that the statement was read over and explained to the declarant, cannot be the reason for holding that the dying declaration is unacceptable, if the Court is otherwise satisfied that such a dying declaration inspires confidence. We are clearly of the view that it will be a cumulative effect of the facts and circumstances of the case, which will determine such issues. Hence, there cannot be a strait-jacket formula or hard and fast rule which can be laid down.”

“It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. We are, therefore, unable to hold such requirement as mandatory and that in the absence of it, the dying declaration would become unreliable or unsustainable. In our view, it would be unjust to reject the dying declaration only on such hyper-technical view, which is hardly of any help in the matter of criminal trials,” the judgement reads.The full bench also said the Courts are required to adopt rational approach and judge the evidence by intrinsic worth and not by hyper technical view.