Dying declaration cannot be made in kin, friend’s presence

MUMBAI: No relative or friend should be present while the dying declaration of a victim is recorded, the Bombay high court has said.

A division bench of Justice Vijaya Kapse Tahilramani and Justice A R Joshi acquitted a mother-son duo from Pune of bride burning charges, saying the victim's dying statement was tainted as her mother was present when it was recorded.

"A dying declaration is relevant and material evidence in the prosecution of assailants. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the court must be satisfied that it is truthful," said the bench.

"While recording a dying declaration, it is necessary to ensure that only the person recording it and maybe the medical officer should be present. No relative or friend of the victim or anyone else should be present. This is to ensure that the victim is not tutored or deterred while making the dying declaration. These are the essentials to attach credibility to the declaration," said the court.

The HC was hearing appeals filed by Pune's Santosh Vaidu (32) and his mother Alkabai (64), challenging a 2012 trial court's order convicting them of murdering his wife Sunita. The couple got married in 2006, and according to the complaint, she was harassed. On June 6, 2011, the police claimed Sunita's mother-in-law poured kerosene on her when she was sleeping and Sanosh set her ablaze. Sunita, in her dying declaration, named her husband and mother-in-law as the accused. A court in 2012 sentenced the two to life imprisonment.

But the HC said the dying declaration mentioned that Sunita's mother was present when it was recorded. "From the fact that Sunita's mother Lata was present when the dying declaration was recorded, we find it unsafe to rely on it."

Pointing out there was no other credible witness, the HC acquitted the mother-son duo.

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