Dying declaration void if person survives: High court

It has taken the Bombay high court to club some common sense into a lower court which refused to omit the dying declaration of a woman as evidence after she survived an accident.

Justice VR Kingaonkar of the Aurangabad bench heard a petition filed by Balu Bhalerao of Jalgaon challenging the order of a sessions judge in Jalgaon rejecting his application to de-exhibit statements recorded by the police and magistrate in the form of dying declaration of Fakira who met with an accident.

Bhalerao, an accused in the case, applied on the grounds that they were not admissible in evidence. The session judge rejected the application stating that there is no provision for de-exhibiting any document.

Justice Kingaonkar in his December 6 judgment noted though the statements were recorded as dying declaration, “yet Fakira being alive, now it is not  admissible in evidence”.

The judge wrote in his order that the simple reason is that it does not come within the ambit of section 32(1) of the Evidence Act as it does not refer to the transaction pertaining to the circumstances relevant to the death of the person.

“A statement made by a person as to the cause of his death, or as to any of the circumstances which result in his death may be relevant,’’ the judge noted.

Justice Kingaonkar held that, “The sessions judge failed to notice that giving an exhibit number is only a ministerial act and has nothing to do with its admissibility or the relevancy.’’