A two-judge divisional bench of Justice Ziyad Rahman and Justice Vinod K. Chandran was faced with the question of the declaration of a dying person in the case of Thankappan Achary v. The State of Kerala (2021) CRL. A. No. 480/ 2017 where the admissibility of Nemo Moriturus Praesumitur Mentire was questioned, wherein the case of Uka Ram v. The State of Rajasthan (2001) 5 SCC 259 shows that the sense of impending death puts a dying individual in the same state of mind as that of a conscientious and virtuous man under oath, such that the credibility of the said person’s declaration must be upheld depending on the circumstantial specificities of the case. The facts of the present case are as follows:
- That the appellant is the elder brother of the husband of the deceased, wherein the two brothers live in the same residential building in the same property in the name of their mother.
- That there were frequent quarrels between the appellant and the deceased, wherein the appellant cooked his separate food even though the two brothers shouldered the same electricity bill received at the property.
- That in the month of July, the household received an electricity bill from the Kerala State Electricity Board (KSEB) for the month of June 2014, wherein the bill allegedly showed a sharp increase in the electricity charges for the said month; consequently, the deceased raised a complaint about the increased charges with the KSEB.
- That although the authorities from KSEB arrived at the property and checked the electricity meter for any malfunctions, they could not find any mistake and concluded that the elevated charges were a result of higher consumption of electricity; this prompted a series of altercations between the deceased and the appellant on July 15, 2014, since she thought that the appellant was responsible for the higher consumption of electricity in the household.
- That the appellant accused the deceased and her family of consuming more electricity; additionally, he accused her of selling their LPG cylinder to third-party individuals.
- That evening of July 15, the son of the deceased returned the property and the deceased told him about the incident in the day, wherein the son confronted the appellant about the argument with the deceased; consequently, the son inflicted two blows upon the appellant.
- That on the morning of July 16, 2014, the husband of the deceased returned from his night shift, wherein the deceased told him about her argument with the appellant.
- That at 09:45 A.M., the husband of the deceased heard the cries of the deceased; subsequently, he ran into the verandah and saw the deceased engulfed in flames with the appellant present at the scene.
- That although the deceased was immediately rushed to the Taluk General Hospital and then to the Medical College and Hospital, Trivandrum, the deceased succumbed to her injuries on July 17 at 05:45 A.M.
- That the Sessions Court found the appellant guilty; however, the present appeal against the aforementioned judgement is held by the appellant on the grounds that there has been no establishment of guilt on part of the appellant.
- That four dying declarations were recorded from the deceased: PW1 (the son of the deceased), PW2 (the daughter of the deceased), PW14 (the doctor who attended to the deceased at the hospital) and PW13 (the Judicial Magistrate, First Class who recorded the statement of the deceased at the order of the Chief Judicial Magistrate, Trivandrum on the basis of an application by the Inspector of Police).
- That upon the arrival of the deceased at the hospital in the presence of her husband, PW14 enquired about the cause of the incident, wherein the deceased supposedly raised her arm to catch the attention of the doctor; subsequently, the deceased stated that she was set ablaze by the appellant. It is worth noting that the aforementioned statement was recorded within minutes of the occurrence of the incident, at 10 A.M.
- That when the son of the deceased arrived at the hospital by 11.30 A.M., he saw the deceased and cried out “Amma.” The deceased held her son’s hands and stated that she was set ablaze by the brother of his father, i.e. the appellant.
- That at the time of the incident, the daughter of the deceased was studying at Heera Engineering College and during the lunch break on July 16, she noticed multiple missed calls on her mobile device, wherein one of the missed calls was from the sister of the deceased, Maheswari. Upon calling Maheswari, the daughter was informed about the serious burn injuries sustained by her mother, wherein the daughter and her husband arrived at the hospital on July 16, at 3.30 P.M.
- That when the daughter of the deceased saw the deceased and cried, the deceased identified the voice of her daughter. The deceased told the daughter that the act of setting her on fire was done by her father’s elder brother.
- That the deceased had suffered 60% burns all over her body; this placed an imminent threat of death on her. The imminence of death coupled with the statements made by the deceased about not only the nature of the cause of death but also the culprit to her death makes the said statements valid dying declarations.
- That the Judicial First Class Magistrate recorded the statement of the deceased on July 16 at 01:08 P.M. after the doctor-in-charge at the said time declared that the deceased was mentally and physically fit to provide the said statement; additionally, the magistrate asked certain questions to ascertain the stable state of mind of the deceased. The recorded statement reveals that the deceased accused the appellant of putting her on fire.
It is worth noting that the Judicial First Class Magistrate and PW14 are independent persons and have no material interests in the family matters of the deceased; additionally, the proximity of the declaration to PW14 to the occurrence of the incident (within 15 minutes of the commission of the incident) proves that the statements of the deceased were free of any manipulation, tutoring, coercion. The divisional bench upheld the dying declaration of the deceased owing to its consistency across four individuals with the questions asked by PW13 showing her physical and mental capability in making such declarations.
It is worth noting that in the case of Bhagwan v. The State of Maharashtra (2019) 8 SCC 95, a two-judge divisional bench of Justice S. K. Kaul and Justice K. M. Joseph upheld the dying declaration of an individual suffering from 92% burns since they found it credible, reliable and to not only be free from tutoring but also be coming from a physically, mentally fit person, wherein the bench held that if a dying declaration inspires the confidence of the court of law, then the same must be accepted as valid by the court.
The consistent nature of the declarations was validated by the Kerala High Court, wherein they held that the deceased was certified to be mentally and physically fit by a medical practitioner to provide the said declarations; additionally, one of the declarations was provided at a time very close to the actual occurrence of the incident, making it free of any confabulation and external manipulation. Although two of the declarations were given to a family member, the other two were provided to independent individuals with no ulterior interest in the case; hence, the bench upheld the declarations as competently valid.
The appellant was charged with the homicide of the deceased and sentenced to imprisonment.