Issue
Under the Evidence Act 1872, In case the victim left multiple dying declarations throughout the day, under different facts and circumstances, being contradictory to each other, which of them can be considered to be proper and legitimate to form basis of conviction of accused?

Rule
Section 32(1) in The Indian Evidence Act, 1872
When it relates to cause of death:
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Analysis
In the present case, the facts are as such:

• The facts as brought out in the case of the prosecution are that the accused Shudhakar was married to the deceased Ratanmala and they used to live at Ganesh Chowk Seoni, Tehsil and District Seoni, Madhya Pradesh. They were living in the house of one Krishna Devi Tiwari.
  
  The accused was suspicious about the character of his wife Ratanmala. On the date of occurrence, i.e., 25th July, 1995, there was argument between the husband and the wife in consequence to which the accused assaulted Ratanmala. Thereafter, he poured kerosene oil on her and put her ablaze by lighting a match stick due to which there was smoke in the house.
  
  The people living nearby gathered around the house upon seeing the smoke and finding Ratanmala in burning condition, took her to the hospital wherein she was admitted by PW8, Dr. M.N. Tiwari and was occupying bed No.10 of the surgical ward of the district hospital. Except the upper portion, her entire body had been burnt. Her body was smelling of kerosene.
  
  The injuries were fresh. According to the medical evidence, they were caused within five hours and the burn injuries were fatal for life. As per the statement of PW4, Dr. H.V. Jain, one Dr. Smt. A. Verma, lady doctor, gynaecologist had accompanied him for the post mortem of the dead body of the deceased which was brought by Constable Bhoje Lal from Seoni. Statement of PW4 clearly shows that upon post mortem examination, Rigor Mortis was found on the entire dead body. Both the eyes were closed, superficial burns were present on the entire body.
  
  The skin had separated at a number of places. The body was burnt between 97 per cent to 100 per cent. There were burn injuries on the skull and occipital region. The cause of death was shock and hipobolamar which was caused due to severe burn injuries and due to fluid loss.
   
• It is the case of the prosecution that Ratanmala had told the people gathered there that the accused had burnt her by pouring kerosene oil on her. When she reached the hospital, the doctor had informed the police. The doctors also informed the Naib Tehsildar, DW1, who came to the hospital and recorded the first dying declaration (Exhibit D/2) of the deceased Ratanmala at 4.35 p.m. on 25th July, 1995.
  
  In her first dying declaration, she did not implicate her husband and stated that she received the burn injuries from a stove while cooking food. Before her death, two more dying declarations were recorded in the hospital. One (the second) declaration (Exhibit P-12) was recorded by Rajiv Srivastava, Tehsildar (PW9) at 6.30 p.m. on the same date.
  
  In relation thereto, Dr. Jain had endorsed the certificate of fitness of the deceased to make the statement. The third dying declaration (Exhibit P-6) was recorded by Sub-Inspector D.C. Doheria, (PW7) in presence of two independent witnesses, Bharat Kumar and Abdul Rehman. In these two subsequent dying declarations recorded by PW9 and PW7, respectively, the deceased had specifically implicated the accused by clearly stating that he had put kerosene oil on her and set her on fire. The reason for not implicating her husband in her first dying declaration was that there was every likelihood that his husband would lose the job.
   
• Unfortunately, she succumbed to the burn injuries and died in the hospital itself. Inquest proceedings were carried out. The Investigating Officer prepared the site plan and the body of the deceased was subject to post mortem which was performed by PW4, Dr. H.V. Jain. The Investigating Officer recovered matches as well as burnt match, broken mangalsutra and burnt saree from the place of occurrence. Among certain other articles recovered from the site, one can was also recovered in which about one litre of kerosene oil was still remaining.

Let's proceed with the Analysis:
In cases where the cause of a person's death is in issue, Section 32 (1) of the Indian Evidence Act defines when the person makes a statement as the cause of his death, or as any of the circumstances of the transaction that resulted in his death. Such remarks made by a person are significant whether the person who made them was alive or not, under the expectation of death at the time they were made, and whatever the nature of the proceeding in which the cause of his death is questioned.

The deceased person's statement will be considered evidence and admissible in a court of law. The Latin proverb Nemo Mariturus Presumuntur Mentri, which means "Man Will Not Meet His Maker with Lying on His Mouth," explains why this is. In our Indian law, it is the reality that a dying man can never lie or that the truth is always on his lips. As a result, the Dying Declaration is admissible in court and can be used as a weapon to punish the perpetrator.

According to section 32 clause (1) of Indian Evidence Act, the requirement of dying declaration is as follows:
The statement made by the deceased may be oral or written. But in some cases it can be made with sign and gesture depends on the condition of the deceased

The statement must be as:

• Cause of death- when the statement is made by the person as to the cause of his death or as to any of the circumstances of the transaction which was the reason for his death not cover all the incident which are not relevant in order to determine the cause.
• Circumstances of the transaction- the statement made by the deceased is only related to the circumstances of the transaction will result in the death of the deceased, remoteness or having no nexus which cannot be connected with the transaction have no value.
• Resulted in the death- the deceased statement should have the cause and circumstances that will clearly reason for his death or ultimately result in his death.

The statement of the deceased should match the facts and circumstances of the case. It is very important to understand the character of multiple dying declarations.
Points to be considered in multiple dying declarations:

• There should be regularity in all the dying declaration.
• If all the dying declaration does not match or say overlap, then the court will examine the facts of the case with the dying declaration Or examine the witnesses.

In the case of Bhadragiri Venkata Ravi1 vs Public Prosecutor H/C Of A.P on 29 May, 2013, the following was held:

16. In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same.

In fact it is not the plurality of the dying declarations but the reliability thereof that adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout.

17. In case of inconsistencies, the court has to examine the nature of the same, i.e. whether they are material or not and while scrutinising the contents of various dying declarations, the court has to examine the same in the light of the various surrounding facts and circumstances.

In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant (s).

In Laxman Vs. State of Maharashtra 2, the following was held:
The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth.

Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement.

It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.

The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion.

But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.

A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer.

When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording.

Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

In Sher Singh 3and another V. State of Punjab, (2008) 4 Supreme Court Cases 265, the following was held:
16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross- examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness.

The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit.

Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable.

What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise."

In Lakhan4 vs State Of M.P on 9 August, 2010 the following was held:
In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required.

In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.

In the present case, the status of the three dying declarations are as follows:

1. First
   
   • It is the case of the prosecution that Ratanmala had told the people gathered there that the accused had burnt her by pouring kerosene oil on her. When she reached the hospital, the doctor had informed the police. The doctors also informed the Naib Tehsildar, DW1, who came to the hospital and recorded the first dying declaration (Exhibit D/2) of the deceased Ratanmala at 4.35 p.m. on 25th July, 1995. In her first dying declaration, she did not implicate her husband and stated that she received the burn injuries from a stove while cooking food. However, Before her death, two more dying declarations were recorded in the hospital.
   • When the deceased was brought to the hospital, she was accompanied by the accused and other relations. While her statement Exhibit D-2 was recorded by DW1, Naib Tehsildar, the accused and his relations were present by the side of the deceased.
   • The defense had examined two witnesses, namely, DW1, Sumer Singh, Naib Tehsildar and DW2, Dr. S.L. Multani. DW1 had recorded the first dying declaration of the deceased. According to this witness and as per Exhibit D2, the statement recorded by him, it is clear that he did not take the certification of the doctor prior to the recording of the statement to the effect that she was in a fit state of mind to make the statement.
   • In the present case, the first dying declaration was recorded on 18-7-1994 by ASI Hakim Singh (DW 1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (DW 1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her
   • The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat.
   • The statement of the deceased was totally tilted in favour of her husband and the version put forward was that she had caught fire from the stove while cooking. This appears to be factually incorrect inasmuch as if she had caught fire from the stove, the question of the mattress and other items catching fire, which were duly seized and recovered by the Investigating Officer, would not have arisen.
   • DW1, though mentions in his statement that the deceased was fully conscious, chose not to obtain any fitness certificate from the doctor on duty. In spite of it being a rule of caution, in the peculiar facts of the present case where the deceased had suffered 97 per cent burn injuries, DW1 should have obtained the fitness certificate from the doctor.
      
2. Second
   
   • The second dying declaration (Exhibit P-12) was recorded by Rajiv Srivastava, Tehsildar (PW9) at 6.30 p.m. on the same date. In relation thereto, Dr. Jain had endorsed the certificate of fitness of the deceased to make the statement.
   • Exhibit P12 was the second dying declaration that was recorded and Kamat Prasad Sonadia, the witness was present at the time of recording of this dying declaration.
   • In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW 7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (PW 8) on 22-7-1994.
   • The second dying declaration appears to be genuine and natural. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. The mere fact that it was contrary to the first declaration would not make it untrue.
   • Furthermore, within a short while, after her first statement, she changed her view. Exhibit P12, the second dying declaration, was recorded at 6.30 p.m. on the same day after due certification by the doctor that she was conscious and in a fit condition to make the statement. This statement was recorded by PW9, the Tehsildar. In his statement, PW9 has categorically stated that he was directed by the SDM to record the dying declaration. He had even prepared memo, Exhibit P-13, and sent the same to the Police Station. He specifically stated that the deceased was in a great pain and was groaning. She was not even fully conscious. According to him, he was not even informed of recording of the fact of the previous dying declaration. He had carried with him the memo issued by the SDM for recording the statement of the deceased.
      
3. Third
   
   • The third dying declaration (Exhibit P-6) was recorded by Sub-Inspector D.C. Doheria, (PW7) in presence of two independent witnesses, Bharat Kumar and Abdul Rehman. In these two subsequent dying declarations recorded by PW9 and PW7, respectively, the deceased had specifically implicated the accused by clearly stating that he had put kerosene oil on her and set her on fire. The reason for not implicating her husband in her first dying declaration was that there was every likelihood that his husband would lose the job.
      
   • Furthermore, PW6 gave the complete facts right from the place of occurrence to the recording of dying declaration of the deceased. He categorically denied the suggestion that the deceased had stated to him that she caught fire from the stove. Rather, he asserted that the deceased had specifically told him that the accused had put her on fire.
      
   • The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement.

As a result, we can observe that the initial dying declaration was produced under the influence of the accused's family members and is based on lies and infelicity. Additionally, the deceased has explained why she made the initial dying statement, which was factually inaccurate in light of medical evidence. The second and third dying declarations, on the other hand, were recorded after the doctor's approval and are backed up by other prosecution evidence.

We can conclude that the second and third dying declarations are genuine, voluntary, and backed up by other prosecution witnesses and medical evidence. When read in tandem with the testimony of the prosecution witnesses, these dying declarations can be utilized to convict the accused.

Conclusion
Thus, taking into account all the circumstances of the case, we can easily conclude that in the case of multiple dying declarations, if there are no inconsistencies of facts in all of the dying declarations, it can be considered without corroboration. It may be admissible if all of the dying declarations are identical to one another and accurately indicate the reason of death, with no contradictions between them.

However, if the dying declarations differ from one another and there are factual conflicts, the court will cross-check the facts of the case or analyze the statements of other witnesses to evaluate the truth and sanctity of the statements made in the case.

In the present case, we see that dying declarations two and three are consistent with each other, and were recorded after the doctor's approval and are backed up by other prosecution evidence, In contrast with the first dying declaration, which was made under undue duress. Thus, we can say that the last two dying declarations can be considered to be proper and legitimate to form basis of conviction of accused.

Bibliography:

1. https://indiankanoon.org/doc/140049402/
2. https://indiankanoon.org/doc/375231/
3. https://indiankanoon.org/doc/1893943/
4. https://indiankanoon.org/doc/98853

Written By: Mohammed Arafat Mujib Khan