dying declaration research paper

JOURNAL FOR LAW STUDENTS AND RESEARCHERS

ISSN[0] : 2582-306X

CRITICAL ANALYSIS OF DYING DECLARATION by Samridh Sinha & Chirayu Bagree

Author : Samridh Sinha [1], Student at O.P Jindal University.

Co-Author: Chirayu Bagree [2], Student at O.P Jindal University.

Section 32(1) of the Indian Evidence Act deals with dying declarations. Dying Declarations have been an intrinsic part of common law systems as far as evidence law is concerned. It is a written or oral set of facts as declared by the declarant explaining the circumstances of his death. Dying declaration is a debatable topic and must be subjected to critical academic inquiry to ensure it evolves with modern times. This paper seeks theoretically to break down the true meaning of dying declaration by studying statues and case laws involved. Secondly, the paper seeks to form a comparative analysis with other common law systems. Finally, the paper seeks to critically analyse the concept of dying declarations and specifically look at:

(i) Confusion surrounding dying declarations with respect to procedure i.e., if there is a need of a medical report, investigating officer dilemma, etc.

(ii) Suggestions to curb evolving times and broadening the sphere of section 32(1).

INTRODUCTION

Nemo moriturus praesumitur mentire

The above legal maxim means that “A Man will not meet his Maker with a lie in his mouth.” Although it is nowhere defined in the Indian Evidence Act, 1872, [3] a dying declaration is a proclamation, or a statement made by a person who is on his deathbed or before his death. This declaration can be made through writings, verbal communication, conduct and even signs and actions. The rationale behind the previously stated legal maxim is that it is a presumption that no person will lie on his deathbed. The very last moments of this person may be “attended by an involuntary desire to unburden the conscience.” [4] There is also a religious undertone to this entire concept of a dying declaration. The law considers it as an obligation to accept the truthfulness of such statements, since the situation is so serene and solemn in nature. It is accepted that a dying person will not indulge in falsehood and not cause miscarriage of justice while on his deathbed. The purpose of the research paper is to lay down a complete theoretical understanding of dying declaration and form a comparative analysis of dying declaration between two common law systems, India, and England. Furthermore, a complete analysis with respect to vagueness of dying declarations will be targeted, and thereafter critiquing the same. Suggestions will be made through the course of the paper. Secondary sources such as judgements, scholarly articles, papers and materials from the lectures of the course instructor have been used for this paper.

Dying Declaration is a concept of sufficient amount of interest to the legal enthusiasts simply because of the divergent views it can be looked from, for example this paper seeks to analyse how the concept is shaped in front of two common law systems.

“Truth sits upon the lips of dying men.” – Matthew Arnold.

The law elaborates on whether a certain piece of evidence is relevant and admissible in Court. The principle that governs Evidence Law is that what cannot be tried or tested in the Court of Law is inadmissible. Administration of an oath in court and cross-examination of a certain statement or a certain piece of evidence helps in establishing the veracity of said evidence. Thus, hearsay is not considered as evidence in most cases, S.32 (1) of the act [5] being an exception to the rule.

In India, dying declarations are admissible in both civil and criminal cases alike. [6] “For a statement to be attracted under the above section of the Act, the person trying to introduce the declaration must prove that:

• The statement sought to be admitted was made by a person who is dead or who cannot be found of whose attendance cannot be procured without an amount of delay and expense or is incapable of giving evidence.
• Such statement should have been made under any of the circumstances specified in Subsections (1) to (8) of Section 32 of the Evidence Act.” [7]

With respect to the person making a dying declaration, if he has a slight hope of recovering, his declaration will not be admitted into court. Although these declarations are backed by various judicial decisions by now, however, these statements have to pass a few tests for it to qualify as evidence. A declaration must pass the test of reliability since firstly, this statement has been made when the accused was absent and secondly, there is no chance of a cross-examination of such statements to verify its genuineness.

The second test to be applied is the test of proximity. This test, however, cannot be literally pursued since the facts may differ in every case. It cannot be reduced to a universally applicable formula.  In the Ratan Singh Case, [8] it was held that:

“It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of S.32 (1) of the Evidence act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.” [9]

Following the Supreme Court’s decision in Pakala Narayan Swami v Emperor, [10] Onkar v. State of Madhya Pradesh [11] explained the circumstances coming under the purview of the above section.

“The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused…. Thus a statement, merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime.” [12]

A dying declaration simply does not pertain only to cases of homicide. S.32 of the Act is also applicable in a case pertaining to suicide. Thus, the above declaration is equally relevant to prove a case related to suicide. “A suicidal note written found in the clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act.” [13]

A strange thing under Indian law is the fact that a dying declaration, as per Section 32 (1) of the Act, [14] the “expectation of death” [15] does not hold much relevance in the admissibility of a dying declaration. [16] This is extremely peculiar considering the fact that the Supreme Court has cited R v. Woodcock [17] in quite a few cases. The rationale behind the above case is that:

“The general principle on which this species of evidence is admitted is that they are declarations 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 mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.” [18]

These kinds of rationales given become difficult to argue since Indian laws allow the admissibility of dying declarations even when a person is not under the situation of impending death. Therefore, there is no pressure on him at all, religiously or psychologically to make a truthful dying declaration.

“Solely based on a dying declaration, a conviction can take place if the statements are voluntary and true in nature. However, it may become unreliable if it is not as per the prosecution’s version or there is some fault in that version. The Supreme Court sums this up in the following way:

• It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross examination.
• Court should satisfy that there was no possibility of tutoring or prompting.
• Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable, especially if the doctor was available.
• Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
• Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the declaration. But court cannot be too technical.” [19]

“Therefore, it can be concluded that once the statement of Dying person and the evidence of the witnesses testifying the same passes the test of careful scrutiny of the courts, it becomes very important and reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a Dying Declaration by itself can be sufficient for recording conviction even without looking for conviction.” [20]

A few other essentials conditions to further strengthen and a dying declaration are as follows:

• A competent Magistrate, after taking all the necessary precautions, has recorded the declaration.
• The declaration has been noted down in the exact words that were uttered by the dying person.
• Shortly after the assault or any other accident, this dying declaration must be recorded so that there is no chance of others adding their impressions as to how the accident occurred or anything to the declaration.
• The dying person had an ample amount of time and opportunity to make the declaration.
• As long as the deceased had had his story straight and his multiple statements were in flow and directly related to the circumstances in hand, it is a valid declaration.

With respect to the corroboration of the declaration, the Court must simply be satisfied that the dying declaration, which was given, was giving voluntarily in nature and is truthful. Secondly, the person giving this declaration should be in a sound state of mind. In the case of Harbans Singh v. State of Punjab, [21] the Supreme Court held that:

“It is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before conviction can be based thereon. The evidence furnished by the dying declaration must be considered just as the evidence of any witness, though undoubtedly some special consideration arises in the assessment of Dying Declaration which does not arise in the case of assessing the value of a statement made in the court by a person claiming to be a witness of the occurrence.” [22]

In the absence of a police office or a Magistrate, a doctor may record the dying declaration. If a doctor feels that a person does not have long to live, it is his duty to record said statement. He is also the best to take into account the state of mind and health of the patient. Thus, a doctor recording the dying declaration is admissible in court. [23]

With respect to medical certification from a doctor, in the case of Sunder v. State of Uttranchal, [24] the dying declaration was challenged simply on the grounds that the doctor did not endorse the state of mind and health of the victim. Rejecting this plea, the Supreme Court held that by asking the doctor beforehand about the mental condition of the victim, the Magistrate had satisfied himself and by looking at other corroborative pieces of evidence, the Court held that the Magistrate was right in accepting the dying declaration. Similarly in the case of Laxman v. State of Maharashtra, [25] it was held that:

“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 look 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.” [26]

DISTINCTION BETWEEN INDIAN AND ENGLISH LAW

The law with respect to dying declaration in England and India have certain differences that this paper seeks to analyse.  As far English law is concerned, a dying declaration must be made under the sense of impending death, the person should have no hope of living. In Indian law it contrasts in the sense that it is immaterial if there existed any expectation of death at the time of the declaration.  In R v Jenkins, [27] the deceased’s dying declaration read “with no hope of recovery.” However, the deceased then later amended her dying declaration to add the word ‘present’ before ‘hope’. Therefore, her dying declaration read “with no present hope of my recovery.” The English court held that the amendment of the declaration is suggestive that she entertained a marginal hope of recovery and hence cannot be understood within the concept of a dying declaration. In India, as per the application of rules as given under section 32 of the Indian Evidence Act the statement made by the person (since deceased) would be admitted in evidence. The English understanding is problematic simply because the judges would be ascertaining the knowledge of imminent death in every case, this would be subjective to the judge and allow discrepancies to creep in.

NATURE OF PROCEEDINGS

There is also a contrasting difference with respect to the application of the dying declaration in the two countries. Let us take the hypothetical example of a rape case to understand this difference in application. In India, a dying declaration of a rape victim is admissible even if the death is not the subject matter of the charge, provided that the question of her death comes in the transaction of the rape charge. However, in England the court is of the opinion that only when the death of the deceased is the subject of the charge is when dying declarations are admissible. [28] Therefore, in England, such dying declaration of a rape victim is not admissible to prove rape. [29] This is because in such cases, the death of the deceased is not subject matter of the charge. The U.K position in this sense varies from the Indian understanding as there is an added necessity of death being the subject matter during investigation. Therefore, dying declarations in England are subject to homicides only which is a more narrowed understanding of dying declarations when compared to India, where dying declarations are admissible in both civil and criminal courts.

CIRCUMSTANCES LEADING TO DEATH

Statements being linked directly to the “cause of death” is another essential component of admissibility of dying declarations. [30] In the U.K, this is followed very strictly. [31] Any additional information which has nothing to do with the death is instantly eliminated. In the Indian statue of Evidence Act, as per section 32 (1) it also requires declarant’ “cause of death,” [32] however in addition to it, any of the “circumstances of the transaction which resulted in the death of the declarant are also admissible.” [33]   The phrase “circumstances of transaction” gives a broader understanding as far as admissibility of evidence is concerned.

“There need not necessarily be a direct nexus between “circumstances” and death. It is enough if the words spoken by the deceased have reference to any circumstance which has a connection with any of the transactions which ended up in the death of the deceased.” [34]

Therefore, we can safely say that Indian understanding with respect to dying declaration is broader than the U.K since the circumstances surrounding the death are also admissible.

DECLARATIONS AND COMPETENCY

In English law it is rather clear that the declarant must be as competent as a witness, hence, tender age or being imbecile will exclude declaration. With respect to India, the law is not clear if this rule is applicable. However, S. 118 of the Indian Evidence Act reads that “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.” Therefore, it seems like in India, tender age or incompetency cannot be the grounds for complete exclusion of the declaration. Therefore, declarations of a child are to be looked at with greater judicial circumspection. [35]

EVIDENTIARY VALUE

While both in the U.K and India, conviction can be reached on the sole basis of dying declarations, there is a stark difference in their approaches. The dying declaration is a solid piece of evidence in the U.K due to the expectation of death. In India the evidentiary “weight is attached… on the basis of circumstances and surrounding under which it was made.” [36] The court also noted differences wherein it said that weight attached to a dying declaration under section 32 (1) of the evidence act would be less when compared to the weight attached in common law rules. [37] The rationale behind this is that a person making a dying declaration in India would lack that necessary condition (like in the U.K) of believing that a man was conscious of his condition and who knew death was inevitable and hence had given up all hopes of survival.

From the observations made above it is safe to conclude that Indian understanding of dying declaration is far more liberal and broader than English understanding of the concept.

“Apart from the dubious psychological foundation for the exception, and the difficulty of proving that the deceased had a settled hopeless expectation of death, the principal illogicality of this exception is its restriction to murder and manslaughter. It does not apply to rape or armed robbery, but there is no logical justification for such a restriction. It is also out of step with the modern approach to res gestae, in which the emphasis is rightly on probative value.” [38]

The Indian understanding of dying declaration poses a few problems that are necessary to admit. The main rationale behind a dying declaration is that “truth sits upon the lips of dying men.” [39] However, as per paragraph 2 of Section 32 (1) of the Indian Evidence Act, [40] it is made abundantly clear that the declaration need not necessarily be made under the anticipation of death. This is contrary to the English understanding, where anticipation of death is a prerequisite to admit dying declarations. While being broader than the English understanding, the paragraph takes away the desired sincerity so demanded from the serene moment.

Furthermore, there is a definite religious undertone to the statement ‘a man will not meet his maker with a lie in his mouth.’ Such a statement may hold true to god fearing and hyper religious individuals, but to make a sweeping assumption and use it in the court of law may be problematic in the modern society we live in. Motive of hatred, revenge may often lead to the declarant making false sweeping claims on the approaching death and facilitate miscarriage of justice. If a dying declaration is made under feeling of hatred and revenge, then such declarations must not be admitted as evidence. [41]

As far as the question of a dying declaration being a significant piece of proof is concerned, there does not seem to be much controversy. In India, a dying declaration stands on a different foundation than in England. According to English law, the credibility and relevance of a dying statement is important only if the person making such a statement is in a hopeless state and expects an imminent death. The weight to be added to a dying declaration in India depends not on the presumption of death that is assumed to guarantee the truth of the declaration, but on the circumstances and environment under which it was made, and also very much on the circumstances of the record made of it. The question is if it is safe to admit dying declarations without any corroborative piece of evidence to support it. One of the earliest judgments on dying declarations in India exclaimed that it would be unsafe to admit dying declarations as evidence without corroborative evidence. [42] However, there is no law or absolute rule that dying declarations cannot be the sole evidence in conviction, this stands true for both England and India. Therefore, it is imperative for the court to strike the right balance between serving justice and protecting the rights of the accused, this job is even more so difficult because of the absence of cross examination.

Another point of criticism with respect to dying declarations is that only when the death of the declarant comes into question is when it can be admitted under section 32(1). Let us look at an illustration where two brothers, C and D were shot dead. D describes C’s death in his dying declaration. D’s dying declaration will be excluded simply because the subject matter of the charge was not his, but his brother C’s death. It is referred as senseless rule of exclusion by Professor Wigmore. [43] Hence there must be a case by case understanding and inclusion of such declarations as evidence to avoid miscarriage of justice. In its sixty-ninth report on the Indian Proof Act, 1872, the India Law Commission noted that the language of the Provision is also now capable of a wider construction. It therefore proposed that Section 32 (1) on the following lines be added with a clarification.

“The circumstances of the transaction which resulted in the death may include facts relating to the death of another person.” [44]

There is a procedural vagueness in the understanding of section 32 (1) as well. Section 32(1) is silent about the mode of declaration and to whom it can be made. While it is understandable that a person in a situation of giving dying declaration cannot be reasonably expected to follow procedures, the absence of the same poses a lot of questions.

• Section 162 (1) of Code of Criminal Procedure provides that any statement to the police officer in the course of investigation is inadmissible, does it apply to dying declarations too?

While the courts have been hesitant to take admissions made to an investigating officer, the same clause mentions an exception to those cases which fall under the bracket of section 32(1) of the Indian Evidence Act. The courts have often conceded that the practice of making dying declarations to police officers must not be encouraged. [45] In cases where it can be reasonably explained why an investigating officer had to take the dying declaration, the same should be considered by the courts, however, they must be able to recognize the genuineness of the same. Often investigating officers with the greed of having a successful investigation may tamper with the dying declaration. This would lead to miscarriage of justice which is why the courts are rightly hesitant. Circumstances need to be considered case via case.

• What happens in cases when the doctors have provided no certification that the declarant was mentally fit to give a declaration?

There is no rule of a prerequisite of a doctor’s certificate to ensure the admissibility of a dying declaration. Courts are of the opinion that the person who is recording the dying declaration must be convinced that the declarant is fit enough to do so. [46] While arguments have often been made on the absence of a medical certificate, there can be situations wherein the doctor could not have been called. In such situations completely disregarding the declaration would be absurd. The courts must not deny such declarations and check the truthfulness of the contents of the declaration. The courts should rely on the declaration once they are convinced that it is not tutored independent of a doctor’s report.

BROADENING THE SCOPE OF ARTICLE 32 (1)

As we have established above, The English understanding of dying declarations is narrower than the Indian understanding as per the law. ‘Circumstances of transaction’ in section 32 (1) is absent in the books of English law. In Rattan Singh v. State of H. P, [47]   the court explained ‘circumstances of transaction’ mean that there need not be a direct nexus between circumstance and death. Distant circumstances are also admissible in court as long as there is a nexus with the transaction that resulted in death.

“It is enough if the words spoken by the deceased have reference to any circumstance that has connection with any of the transactions that ended up in the death of the deceased. Even distant circumstances can also become admissible under the subsection provided it has nexus with the transaction that resulted in death.” [48]

The phrase ‘circumstance of transaction’ leaves room for some form of limitation. Perhaps “circumstantial evidence” is a broader meaning to include all relevant facts and admit it as evidence. For example, a declaration which explains motive cannot be admitted in evidence but for being closely connected to the transaction itself as a circumstance. [49]

We can safely conclude that the Indian understanding of dying declarations is a lot broader than the English understanding of the same. However, it is imperative to note the Indian understanding is not barred of limitations. In conclusion, this paper has recognized certain limitations and provided criticisms for the same. The paper also critically points and tries to answer certain confusions that may arise from the bare reading of section 32 (1) of the Indian Evidence Act. We also have suggested a few amendments in the way law is dealt with respect to dying declarations. These statements are looked at different ways in different countries. However, the only thing which becomes imperative while looking and whether to admit or refuse to admit this evidence is that it strikes the right balance between justice for the deceased and the rights of the accused.

[1] Student, [email protected] , BA-LLB, 3 rd year (Batch of 2023)

[2] Student, [email protected] , BA-LLB. 3 rd year (Batch of 2023)

[3] Indian Evidence Act, 1872.

[4] Roderick Munday, Musings on the Dying Declaration , 22 Anglo-Am. L. Rev. 42, 42 (1993).

[5] Indian Evidence Act, 1872, S.32 (1), Act No. 1 of 1872, S.32 (1).

[6] Kishan Lal v. State of Rajasthan, A.I.R. 1999 S.C. 3062.

[7] Sudhakar & Anr v. State of Maharashtra, AIR 2000 SC 2602

[8] Ratan Singh v. State of Himachal Pradesh (1996).

[10] Pakala Narayana Swami v Emperor, AIR 1939 PC 47

[11]   Onkar v. State of Madhya Pradesh , 1974 CriLJ 1200 (MP)

[13] State v. Maregowda, 2002 (1) RCR (Criminal)376 (Karnataka) (DB)

[14] Supra Note 3.

[15] The Indian Evidence Act, Act no. 01 of 1872, § 32(1).

[17] R v. Woodcock (1787) 1 Leach 500, 504.

[19] State of UP v. Madan Mohan. AIR 1989 SC 1519.

[20] Viramji Mohatji Thakore v. State of Gujarat, 2005 (2) GLR 1622

[21] Harbans Singh v State of Punjab, AIR 1962 SC 439

[23] [Vol. I] Rajendran A, [‘Evolution of Dying Declaration or whether Dying Declaration still Sacrosanct?’] [Criminal Law Journal, 2002]

[24] Sunder vs. State of Uttaranchal, (2016), 10 SCC 611.

[25] Laxman vs. State of Maharashtra, 2001, 6 SCC 710.

[27] R v Jenkins, (1869) LR 1 CCR 187.

[28] R v. Mead and Belt, (1823), 1 Lew C.C. 184.

[29] SUDIPTO SARKAR & V. R. MANOHAR, SARKAR ON EVIDENCE PG 634 (15 TH ED. 1999).

[30] Peter Nicolas, ‘I’m Dying to Tell You What Happened’: The Admissibility of Testimonial Dying Declarations

Post-Crawford, 37 Hastings Const. L.Q. 487, at 493.

[32] The Indian Evidence Act, 1872, Act No. 01 of 1872, § 32(1) (India).

[34] Supra note 4.

[35] Panchhi v. State of U.P., (1998) Cri LJ 4044 (SC).

[36] Irfan Nabi, Dying Declaration: A comparative Study, (last visited Mar 3, 2020), https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study.

[37] Jasunga S/o Akumu v. R, (1954) 21 EACA 331.

[38] Footnote:  The Law Commission Of England in its 245th report on “Evidence in Criminal Proceedings : Hearsay and Related Topics”

[39] Neha Vijayvarigya, Admissibility Of Dying Declaration: Whether Justified , pg. 177 (2006).

[40] Supra Note 3.

[41] Ashutosh Salil, An Analysis of Indian and English Position of Dying Declaration , J 297, Cri.L.J. (2005).

[42] Ram Nath Madho Prasad v. State of M.P., AIR 1953 (SC) 420.

[43] Supra note 16.

[44] M.G. Amin, Assumptions behind Sanctity of Dying Declarations, pg. 175 (1995).

[45] Atul Gandhi v. State of Assam, (1990) Cri. L. J. 1049. Babura v. State of Rajasthan, (1993) Cr. L. J. 2696.

[46] Laxman v. State of Maharashtra, (2002) Cri LJ 4095.

[47] Cri LJ 833: AIR (1997) (SC) 768.

[48] Chand Sarda v. State of Maharashtra, (1984), AIR 1984 (SC) 1622.

[49] C. Narayan v. State of Kerala, (1992) Crt: LJ 286Q.

• VOLUME 2, ISSUE 3

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• DOI: 10.2139/ssrn.3638815
• Corpus ID: 233761222

Dying Declarations: A Comparative Analysis of Admissibility and Evidentiary Value

• Aditi Agarwal
• Published 8 June 2020
• Evidence & Evidentiary Procedure eJournal

7 References

Dying declaration and its corroboration in pakistan and india: an analytical study of case law, maharaj umeg singh and others (petitioners) v. state of bombay and others (respondents)., the dying declaration., related papers.

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Dying Declaration under Indian Evidence Act, 1872

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This paper deals with the bill titled as BHARTYA SAKSHA ADHINYAM, 2023, presented by the BJP Government in Indian Parliament to replace the existing INDIAN EVIDENCE ACT, 1870. Though statement of Objects and Reasons of the proposed Bill mentions that the the said is being introduced with a view to make existing Indian Evidence Act, 1870, compatible to new age technology but the real object behind is to Hindunize title of the existing INDIAN EVIDENCE ACT, 1870. No considerable change has been brought. Almost entire existing INDIAN EVIDENCE ACT, 1870 has been copied to make definition clause in the proposed bill more complex, not easily comprehensible, and disconnected from the connected basic terms. The proposed bill has even failed to bring the DNA analysis (with special reference to section 112 of the existing Act) to make it legal. Changes could be brought about be amending the existing INDIAN EVIDENCE ACT, 1870. Anyway the proposed bill is a mere copy of the existing INDIAN EVIDENCE ACT, 1870 making it more difficult to understand, and susceptible to wrong interpretations.

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Dying Declaration

This article is written by Akash R. Goswami , student of the faculty of law, Aligarh Muslim University. In this article, he has done a complete analysis of the Dying Declaration with relevant Case Laws.

Table of Contents

Introduction

Whenever any offence has been committed, there is always the two persons, who voraciously knew what actually happened i.e. the Accused, who commit the offence and the other one is Victim, with whom offence had been committed.

In order to prove their positions, and make one’s story to be true, they give Statements to judge but their story one can not rely on the veracity of statements which  they made to support their stories, as it may be prejudiced or untrue so generally, the role of Witness becomes crucial to determine the truth.

But there is a condition when the statement made by the person to be treated as true evidence in spite of the fact that he made the statement in his own favour and hardly any doubt behind the reason for that statement. That condition is Dying Declaration. 

Dying Declaration is a statement made by the person while he was dying and states the reason for his death. The statement given by the dying person can be circumstantial or tells the cause for his death. Hence, the only statement given just before the death of a person is called Dying Declaration. The person who is conscious of Compos Mentis and knows that death is about to happen can make a declaration and state the cause of his death and that statement will be Admissible and treated as Evidence in the Court. Declaration made by the deceased person can be in oral, written and by conduct. The word Dying Declaration explain the word itself. 

In Section 32 (1) of Indian Evidence Act defines when the statement is made by the person as the cause of his death, or as any of the circumstances of the transaction which resulted in his loss of life, in cases in which the cause of that person’s death comes into question. Such statements made by the person are relevant whether the person who made them was alive or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

The statement made by the deceased person will be treated as Evidence and Admissible in a Court of law. The reason behind this can be followed by Latin maxim Nemo Mariturus Presumuntur Mentri which means that “Man Will Not Meet His Maker With Lying On His Mouth. More precisely in our Indian law, it is the fact that the dying man can never lie or Truth sits on the lips of dying man. Hence, the Dying Declaration is Admissible and considered as Evidence in Court, and can be used as a weapon to punish the culprit.

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it can be Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can also be in the form of Question Answer. However, there must be a distinct and definite assertion on the part of the person who produces the statement. Possibly the declaration should be in written form in the exact words stated by the person who made the statement. When a magistrate records the dying declaration, then it should be in Question-Answer form as the magistrate will opt the maximum information rightly, as in some cases dying declaration becomes the sole way to help in the conviction of the accused.

Let us discuss some of the types in the elaborative form:

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the offence of murder before the court of session. That he had murdered one DULARI, a prostitute by cutting her throat through RAZOR. It seems that one-morning dulari with her throat cut was taken to the police station and from there to the dispensary. She was alive till the morning. The post-mortem report shows that the windpipe and the anterior wall of the gullet had been cut through. When Dulari was taken to the police station, she was questioned by her mother in the presence of a sub-inspector. She was again questioned by the sub-inspector, deputy magistrate and subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs. Magistrate asked dulari, as who had wounded her, but due to the injured condition dulari was unable to speak. After that, The magistrate mentioned several names one by one and asked if they had wounded her. Dulari moves her hand forward and backwards and made negative and affirmative signs. Subsequently, the magistrate asked whether Abdullah had wounded her, for that dulari waved her hand made the sign in the affirmative, the magistrate recorded the statement. After that question was put to her that if she been wounded with a knife or sword. In this regard, dulari makes a negative sign, again magistrate asked her if she had been wounded with the RAZOR. She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same was accepted as evidence to prosecute Abdullah.

Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by her in the form of sign and gesture.

The dying declarations made by Nirbhaya were recorded.

The first declaration was recorded by the doctor when she was admitted in the hospital on the night of December 16, 2012 and the second on December 21 by the sub-divisional magistrate during which she gave exact details of the mishappening.

The third declaration was recorded by the metropolitan magistrate on December 25 and was mostly by gestures . The bench said that as far as the third dying declaration is concerned, this court has already held that the dying declaration made through signs, gestures or by nods are admissible as evidence.

Oral and written

When the person gives the name of the murderer to a person present and written by any of them then it is a relevant dying declaration. However, people may dispose of the name of the mugger orally.

An oral dying declaration is admissible in evidence as an exception to the general rule of evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration made before his wife, father-in-law and other near relatives were made in the conscious state.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and brother gave the evidence, that the deceased made the statement month prior to the incident of suicide by her that the appellant, her husband used to taunt the deceased saying that she had come from a hunger house and the appellant himself go to the house of deceased and asked for 10.000/-. It was held that the dying declaration and appellant were convicted under section 304B and 498A of IPC. The Court referred to Pakala Narain Swamy v. Emperor[3] . in which Lord Atkin: held that the circumstances of the transaction which resulted in the death of the declarant will be admissible if such transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not be admissible as evidence. When the condition of the deceased is grave and at his own request a statement made by him in the presence of the doctor was later taken by the police but could not be completed as the deceased fell into a coma from which he could not recover. It was held that the dying declaration was not admissible in court as the declaration appears to be incomplete on the face of it. But the statement, though it is incomplete in the sense but conveys the declarant all necessary information or what he wanted to state, yet stated as complete in respect of certain fact then the statement would not be excluded on the ground of its being incomplete.

The deceased stated, “I was going home when I came near the house of Abdul Majid, Sohail shot me from the bush. He ran away. I saw.” this was the dying declaration made by the deceased and further was unable to answer the questions. It was held that there is no question of incompleteness so far as the context of the case is concerned. In the case of Muniappan v. State of Madras[4]. The deceased made the dying declaration as follows :

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after he was dead. This declaration against Muniappan was complete and admissible.

Question- Answer form 

Dying Declaration can be made in the form of Question-answer. the deceased, in some of her statement, did not state the actual part played by the appellant. She merely answered the questions put to her. The court held that when questions are put differently then the answer will also appear to be different. At first glance, the detailed description of the offence may appear to be missing but the statement of the deceased construed reasonably. However, when the magistrate records the dying declaration, it must be preferred to be recorded in the form of a question-answer must be preferred. If there is nothing to doubt that the person who records the statement made by the deceased exact word to word, would not make any difference merely because the same was not recorded in the form of question and answer. 

Reason for admitting dying declarations in evidence

A dying declaration is admitted in evidence that is truly based on the principle of “Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in his mouth). Dying declaration does not require any corroboration as long as it creates confidence in the mind of the Court and free from any form of tutoring. In case Uka Ram v. State of Rajasthan [5]. Court held that dying declaration is admitted upon consideration is made in extremity; when the maker of the statement is at his bed end, every hope of this world is gone; and every motive of falsehood is silenced and mind induced to speak only truth. Indian law recognises this fact that “a dying man seldom lies”.

Fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the statement must be in a fit state of mind. If the court has the slightest doubt about the mental soundness of the maker of dying declaration, it is unsafe and unfair for the base on such a statement.

The mere fact that the victim in his dying declaration did not make any reference to injuries received by the accused is not a genuine ground that decides the merit of dying declaration. Where the dying declaration was recorded by the doctor who himself certified that the patient was in a fit condition for giving the statement, his non-mentioning that the patient was in a fit mental condition and throughout remained conscious would be of no consequence. In case State of M.P. v. Dhirendra kumar [6]. The mother-in-law of the deceased was in the position to reach the upstair within 5 to 6 minutes after hearing the cry of the deceased. According to the opinion of the autopsy surgeon, the deceased was able to speak about 10-15 minutes. The Supreme Court did not agree with the view of the High Court that the deceased is not in a position to make the dying declaration, as it was reaffirmed by the autopsy report and circumstances of the case that the deceased was in a fit state of mind to talk when her mother-in-law reached the place where the deceased was dying.

Whereas in the case State of Orissa v. Parasuram Naik [7]. The accused, the husband was alleged that he poured petrol on the body of his wife and lit a fire. Whereof extensive burn injuries were sustained by the deceased wife. It was held that the oral dying declaration to her mother can not be accepted because there was no certificate by medical officer certifying that the deceased was medically fit to make a statement.

It is improper to reject the dying declaration on the ground that the fitness of the maker depends solely on the certificate of the doctor and the magistrate himself did not require independently as to whether the deceased was in a fit state to make a dying declaration.

As in the case of Arvind Kumar v. State of Rajasthan [8]. The accused is charged with an offence under Sections 304B and 498A of IPC. The dying declaration was recorded by Naib-Tahsildar but did not take any certificate from the doctor regarding the fit state of mind of the deceased nor there was any endorsement by the doctor. The doctor testified that the dying declaration was recorded by the reader of Naib-Tahsildar. No preliminary questions were asked from the deceased before recording his statement. The naib-Tahsildar also stated that he did not seal the recorded statement of the deceased and carbon copies provide instead of the original copy of dying declaration of the deceased during cross-examination. The mother of deceased categorically refused to put a signature or thumb impression on dying declaration which showed that the dying declaration made in the hospital room was a lie. All these facts created doubt and truthfulness of dying declaration and held that the alleged dying declaration could not be admissible and reliable document as it suffered from a number of infirmities. However, the accused were convicted on the basis of entire evidence.

In case Dhanraj and other v. State of Maharashtra [9]. The dying declaration was challenged on the ground that no medical certificate was attached to the condition of the deceased. However, the deceased went to the hospital all alone by changing different vehicle in the way. The statement of doctor and magistrate was on record to indicate that the deceased was in a fit state of mind to give a statement. Such circumstances can be used as supporting evidence about the mental condition of the deceased.

When the deceased made a dying declaration and while stating that fell into a coma before completing the statement, it would have a serious effect on his capacity to make such a statement. Certificate of fitness given by the doctor with regard to this condition of the deceased. Such an opinion should be accepted by the court. If the circumstances so demand, such opinion must be carefully balanced with all other surrounding facts and circumstances.

In a case Rajeev Kumar v. State of Haryana [10] medical opinion shows that the deceased larynx and trachea were charred by heat. It was clarified that when larynx and trachea are charred, the person can not speak but when they are in the process of being charred, he can speak. The second medical opinion was if the vocal cords or larynx is charred of a person, he may be able to speak but not clearly and it will be difficult to understand. The medical report of two is not in variance with the ocular evidence that the deceased was in a position to speak when dying declaration was recorded and the court can rely on such dying declaration.

Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the person who is recording the dying declaration must have some nexus with the deceased either circumstantially or by some fact. However, the doctor or police officer hold more value as compared to the normal person. As far as the dying declaration is concerned the magistrate entrusted to record the dying declaration, as the statement recorded by him is considered more evidential rather than statement recorded by the doctor, police officer and by the normal person.

The Supreme Court has found this to be true in law, at least in cases where the person dies of burn injuries. Court hold the opinion that “The law on the issue can be summarized to the effect that law does not give any direction that who can record a dying declaration but just provided that magistrate is above all the person in subject for recording the statement, nor is there any definite form, format or procedure for the same,” said a bench of Justices B S Chauhan and Dipak Misra while quashing the high court order in the case of dowry death acquittal case.

The person who records the dying declaration must be satisfied that the maker is in a fit state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the police officer, but if it is recorded by the judicial magistrate that it will have more credential value and reliability.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some circumstances where the judicial magistrate, police officer and doctor is not available, the Court can not reject the dying solely statement made before the normal person. But the person who records the statement must show that the deceased was in a fit state of mind and conscious while making the statement no matter if the statement is not recorded by Judicial Magistrate, doctor and police officer. The statement is admissible in a court of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated condition of the declarant, the statement can be recorded by the doctor or by a police officer. But one condition must be coupled with it that while recording the statement there shall one or two-person present there as a witness otherwise the Court may find the statement to be suspicious. Moreover, the statement record by the doctor, later endorses that the declarant was not in a stable condition and his statement would not be considered as evidence, rectify by the witness that the deceased was in a fit state of mind and conscious to make the declaration. It was held in the case of N. Ram v. State [11] that the medical opinion can not wipe out the direct testimony of an eye witness which states that the deceased was in a fit mental condition and able to make a dying declaration.

Recorded by the magistrate

When the deceased statement recorded by the competent magistrate has deemed to be considered as reliable and attracts the evidentiary value as he presumed to know how the dying declaration should be recorded and he is a neutral person. Moreover, the magistrate has empowered to record the dying declaration under 164 of Cr.P.C .

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to record the statement of the dying person, no matter whether he has jurisdiction over that case or not, and in case where the statement recorded by the magistrate who has no jurisdiction in that case subsection (6) will apply. Here the word “statement” does not confine to only the statement by the deceased and witness but also include a statement of the accused, in order to satisfy himself, but the accused statement will not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan magistrate shall have the power to record the dying statement made by the dying person, whether the magistrate has jurisdiction in that particular case or not, he will be able to record the state provided under this chapter or by any other law for the time being enforced, or at the time before the commencement of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who record the statement should tell the accused that he has to made only statement which shall not be amount to confession, but if he did so, then the confession can be used against him for the purpose of conviction. This is the sine qua non for recording confession. The other important requirement is that the Magistrate must raised questions from the wrongdoer to satisfy himself that the confession made by the accused was voluntary so as to enable him to give the requisite certificate under subsection(4) of this chapter. The judicial magistrate here tell the accused that he is not bound to make a confession, but he did not ask the question from the accused in order to satisfy in question, whether the statement made by the accused is voluntary or not.

In Mahabir Singh v. State of Haryana [12] the Court held that, Where the Magistrate did not clear the rule that the statement made by the accused should not be amount to confession, if he does so then it will be used as evidence against him, can not be considered. The Magistrate must satisfy himself that the statement made by the accused voluntary, no pressure or force was used on the accused while making the confession. Any mark of the person of the accused to vitiate the voluntary character of the confession. When was held not only inadmissible under the section but it could not be used under the other provision of Indian Evidence Act such as sections 21 & 29.

Language of the statements

As far as the language of the statement is concerned, it should be recorded in the language of the deceased in which he is fluent or may possible than in Court language. The court cannot reject the dying statement on the basis of the language in which it was made. It can be recorded in any language. Even if the dying declaration is made by the deceased in Urdu, Hindi, Punjabi languages, it was considered that statement could not be denied on the ground of language in which it was made solely or on the ground that it was recorded in Urdu. When the statement was given by the deceased in Urdu and the magistrate recorded it in English than in that case precaution should be taken while in explaining every statement to the deceased by another person, it was declared that the statement was the valid dying declaration.

Statements made in different languages

When two dying declaration was recorded in two different languages on is in Marathi and the other is in Hindi and the deceased were proficient in both the language the statement could be the basis of conviction as it was held in the case of Amar Singh Munna Singh Suryavanshi v. State of Maharastra [13].

Points to remember

• Dying declaration made by the deceased can be recorded in any language.
• If the statement was recorded in another language than the one which magistrate recorded, then precautions should be taken to explain each and every aspect and phrase.
• The court cannot deny or discard the dying declaration only on the ground of language.

In Biju Joseph v. State Of Kerala [14] it was observed by the court that only ground that the statement of the deceased made was in her own language can not reduce it value of the dying declaration. It was given by the High Court Of Kerala:

“Presumed that the statement made by the deceased when he was dying recorded in his language in which he has command or fluent, does not vitiate it value and court can not denied or rejected on that basis. Judicial magistrate entrusted with the duty to convert the statement in court language. And such translation process would not affect the credibility that dying declaration”.

Multiple dying declarations

Supreme Court Of India in concern to multiple dying declarations, it can be considered upon without corroboration if there is no breakdown of fact in all the dying declaration. If all the dying declarations are similar to each other and state correctly the cause of death, and there is no contradiction between the statement it can be admissible But if the dying declaration is different from each other and there is a contradiction between them, then court will cross-examine the facts of the case or can examine the statements of other witnesses to determine the truth and sanctity of statement regarding the case.

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 Kushal Rao v state of Bombay [15] that case Court set the importance rules for dying declaration and what is the right process or manner to record it. In this case, if the dying statement made by the deceased. That it should be recorded in the form of question answer form, shall be endorsed/supported by the doctor that the deceased was in good mental state, can be recorded by the person who is legally entitled to record, if there are multiple dying declarations than it should be consistent, so that the court can rely on it.

The Supreme Court has held that multiple dying declarations can be reliable when it made without corroboration if consistency is maintained throughout the statement. Otherwise, the courts would have to cross-examine the statements of other witnesses to determine the truth in a criminal trial.

Expectations of death is not necessary

Under English Law, the victim should not be under any expectation of death. Evidence Act has taken this law from English law. If the statement has been made even when no cause of death had arisen then also the statement will be relevant. It is not important at all that the statement recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor [16], it was held that the letter given by the deceased to his wife before going to the place where he was killed was relevant. The court said that the statement made must be at any rate near death or the circumstances of the transaction explaining his death is relevant under section 32 of Evidence Act. In this case, the court stated that dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death. Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.

F.I.R as a dying declaration

In a situation where a person dies after, when a F.I.R was lodged and stating that his life was in danger, it is relevant to be recorded as circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P [16] the Supreme Court Of India observed that statement made by injured person recorded as FIR can be deemed as dying declaration and such declaration is admissible under Section 32 of Indian Evidence Act. It was also observed by the court that dying declaration must not shows the whole incident or narrate the case history. Corroboration is not necessary in this situation, Dying declaration can be declared as the exclusive evidence for the purpose of conviction.

If the declarant does not die

When the dying declaration given by the deceased is recorded. But the question arises that after the dying declaration was recorded and the deceased is still alive, was the statement holds the same effect. In that situation, the deceased now turned to be a witness against the accused to narrate what the actual story was. As the dying declaration itself mentioned the word dying, so it is necessary that there must be an expectation of death on the part of the declarant.

Criticism of dying declaration doctrine

Since the nineteenth century, critics have questioned the credibility of dying declarations. In a state court case, the Wisconsin Supreme Court considered the issue of a dying declaration. The defense pointed out that “this kind of evidence is not regarded with favor.” The defense argued that several factors could undermine the reliability of dying declarations.

Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence.

Dying Declaration in India

Dying declarations are admissible as evidence in Indian courts if the dying person is conscious of his or her danger, he or she has given up some hope of recovery, the death of the dying person is the subject for the changing nature of the dying declaration, and if the dying person was capable of to justify a sense of accountability to his or her Maker.

Distinction between Indian and English law

The distinction between English law and Indian law on the subject of dying declaration has been elaborately dealt in the case of Rajindra Kumara v. State [17] Under English law, the essentials of a dying declaration are as follows:

• The declarant should have been in actual danger of death at the time when they were made the dying declaration.
• He should have had a full apprehension of his death is near.
• Death should have ensued.

These conditions must be proved for the satisfaction of the judge before considered it as a dying declaration than it can be received. Both in England and America, dying declaration is not admissible as evidence whether any civil cases or in criminal cases; it is not admissible upon charges other than homicide, or as to homicides other than that of the declarant.

However, these conditions are not provided in Section-32 Of the Indian Evidence Act. It is not required for a declarant to be in expectation of actual death while making such a declaration nor is it restricted in the cases of homicide. Because of this structure, it becomes increasingly necessary to know that the dying person speaks the truth because if he does not die than still declaration can be used as evidence against the accused. Moreover, dying declaration can be considered as relevant evidence in both criminal and civil proceedings, whenever the cause of his or her death comes into question.

Requirements of dying declaration

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 can not 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.

Pakala Narain Swami v. Emperor Case  

The deceased was a man of about 40. He had been a peon in the dewan of Pithapur. Pakala Narain Swami, the accused, was married to one of the daughters of dewan of pithapur. After marriage pakalana narain swami and his wife went to live at Berhampur about 250miles away from pithapur. In the year of 1993, they came back to pithapur and where they stayed with the dewan. They seemed at that time to have been in need of money, and during 1936 the wife of the accused borrowed money from the deceased at various times an amount of Rs. 3,000. On Saturday 18th March 1937, the deceased received a letter from the accused inviting him to come that day or the next day to Berhampur. The deceased left his house in order to go there and catch the train of Berhampur. He did not come back. On 23rd March 1937, the body of the deceased was found in steel trunk in the third class compartment at puri. The body has been cut into seven portions. The body of the deceased was identified by his widow. The accused was tried and convicted for murder and was sentenced to death.

During the trial, the widow of the deceased stated before the court that on the day her husband showed her a letter and said that he was going to Berhampur as the appellant’s wife had written to him to come and receive payment of his dues.

The lordship of the privy council held that the statement related to the circumstances of the transaction which resulted in the death of the deceased so it was relevant. They also held that the statement made by the deceased that he was proceeding to the spot where he was killed or as to his reason for proceeding or that he was going to meet him would each of them be circumstances of the transaction. However, circumstances must have some proximate relation to the actual cause and must be related to the transaction which resulted in death. For instance, in case of prolonged poisoning, they may be related to date at the considerable distance from the date of the actual fatal date. It is not necessary that there should be a known transaction other than the death of the declarant has ultimately been caused comes into question. In the present case the cause of death comes into question, the transaction is one in which the deceased was murdered on 21th march or22nd march, the statement that he was setting out the place where the accused lived and to meet a person, the wife of the accused, who lived together with the accused’s appears to be clear statement as of some transaction which resulted in his death.

Note: This case is important to be discussed here, as earlier in the article it was stated that the deceased can make a statement by sign and gesture or there are some circumstances that reflect the cause of the death and transaction of the situation collateral to it. In that case, the statement made by the deceased hold   strong basis for conviction.

Dying declaration Case laws and landmark Judgments

• Lakhan v. State of M.P. [18] in this case supreme court provides that, when the condition is satisfied that the dying declaration made by the deceased is true and can be relied upon, as the declarant is found to be conscious and mentally fit while making the statement, and the statement made by him proven to be voluntarily and no compulsion was there while making the statement and can be put for the sole basis of conviction. In that situation there is no need for corroboration is necessary.

In case of multiple dying declarations consists which consist in the form of irregular interval and contradict each other, dying declaration recorded by the person who is entitled to record like magistrate then there is no doubt and can be found to be reliable. But in circumstances where it was observed that the statement made by the deceased is not voluntarily but due to some force or compulsion, then the court raised suspicion on that dying declaration and Court should re-examine the statement of witness and other facts in order to determine the truth.

• In the case of State of Punjab v. Parveen Kumar [19] , the Supreme Court set forth some measure to test the veracity in the case when there is more than one dying statement. The court provides that there must be a series of examinations in order to determine the truth. If the statements provide different versions and do not couple with given facts, then the court must opt for other evidence in their record to clarify the things so that truth can be inferred. 
• In the case of Sudhakar v. State of Madhya Pradesh [20] , the Supreme Court while deciding the issue of multiple dying declarations, which varying from other statements and have no series related to each other, this will raise a doubt in the eyes of court to whether the statement should be believed or not, in order to clear the issue the Court has given some directions which help to guide while exercise the judgment by court in such matters, examined.

The Court put forward the point that when multiple dying declarations made by the declarant, if found either contradictory or are at variance and having no nexus to each other to a large extent and narrate another version of the story, then the test of common reasonableness would be applied while examining which dying declaration is corroborated by circumstantial evidence. Further, when the dying declaration was made the condition of the deceased at the time of making of each declaration concerned, medical report of the deceased, truthfulness of statements made by deceased, possibility of deceased being tutored, are some of the points which would guide while exercise of judicial function by court in such matters.

The Supreme Court also observed that the dying declaration is the statement made when a person is at there bed end, as the word dying declaration itself signifies its meaning. A person having a serious apprehension of death and there shall be no chances for his survival. At this point, the court assumed that whatever the statement made by the declarant is purely true as the man will never meet his maker with a lie on his lips and person will speak only truth.

• Natha Shankar Mahajan v. State of Maharashtra [21] in this case the supreme court ruled that if there is a doubt about the statement made by the deceased, in that case, the gain will transfer to the accused. As this is the correct Law preposition. Moreover on the other was round if the statement found to be true and reliable ten it can be used solely as the purpose of the convection.
• The Supreme Court in the case of Surajdeo Oza v. State of Bihar [22] does not give an affirmative answer to the question and held that merely because the dying declaration is a brief statement it is not to be discarded. On the contrary, the length of the statement itself guarantees the truth.

The Court has to scrutinize the dying declaration carefully and examine each and every sort of situation and must ensure that the declaration is not the result of tottering prompting of imagination and the deceased had the opportunity to observe and identify the accused and was in a fit state while making the dying declaration.

Dying deposition

Dying deposition is almost a dying declaration. The main difference between both is that the dying deposition is always recorded in the presence of a magistrate. Whereas dying declaration can be recorded even by a normal person, doctor and by a police officer.

A deposition is recorded when the lawyer of the accused is present and magistrate record the dying declaration. But dying declaration has no such conditions, but the evidentiary value will be more if the statement is recorded by the magistrate. However, it can be recorded by the doctor or police officer also.

Illustrations

• A case where the deceased was given the statement to his father that I inhale the poison because of my heartbreak and the same was conveyed to the police and father of the deceased also said that the deceased was conscious and in a fit state of mind and the same was endorsed by the autopsy report. After that when the police investigate the matter it was found to be true that the cause of his suicide is the girl who used to aid and abet him to commit the suicide. Hence the statement recorded by the normal person(father) has admissible in a court of law. This is the example of dying declaration. 
• In a case where a woman is burnt by his father-in-law. And the woman was admitted to the hospital by the neighbour and when the police were informed about the matter they came to rely on the statement of the deceased but the doctor tells them that the deceased is not in a position to answer the question. After 2nd and 3rd day when the woman is in better condition and subsequently magistrate was available to record the dying statement and the accused lawyer was also there. The statement is recorded and this is called dying deposition.

Comparison Between Dyeing & deposition declaration

Identification through dying declaration

The conviction can be based on the statement made by the deceased, and the identity of the accused must be established by it. It should contain the same parentage and address of the accused. But if there is no corroborative evidence to prove identity, the conviction is possible and this was established by the Court in the case of Pritam Singh v. State of U.P [23]. However, there is no particular form which is dying declaration identified and admissible as evidence in a court of law in a case the Supreme Court held that only the Crux is important or relevant to determine what actually happened. For instance, if someone stabbed a deceased then the crux of this is, who stabbed him and why, and the rest are the complementary things.

Absence of medical statement of fitness

It is only a rule of caution. Normally, the Court places reliance on the medical evidence for reaching the conclusion whether the person making the dying declaration was in a fit state of mind but where the person recording the statement of the deceased stated that the deceased was in a fit state of mind and conscious, the medical opinion will not prevail nor can it be said that there being no certificate of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A certificate from the doctor is essentially the rule of caution. Where the testimony of the magistrate is to the effect that the declarant was fit to make the statement, it can be acted upon without there being a certificate of the doctor provided that the court ultimately held the same to be voluntary and truthful.

When there was no certificate of doctor about the fitness of the deceased making dying declaration before the investigating officer but the doctor was present at the time of making dying declaration and thumb-impression of the deceased was attested by him, holding that there could not have been any attestation of such document was technically held to be too wrong.

Where the eye-witnesses stated 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 mind of the declarant, the dying declaration is not acceptable. A dying declaration may be reliable without obtaining a certificate of endorsement by the doctor.

Statement is not relevant to the cause of the death

The dying declaration is a statement made by a person to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by section 32(1) of the evidence act and unless absolutely necessary  to make the statement coherent or complete should not be included in the statement. Where the dying declaration is set to be a long written document and tell about the number of incidents in a narrative form and talk about what happened before the actual resort, such long statement being more in the nature of first information reports than recitals of the cause of death or circumstances resulting in it, are likely to give the impression of their being not genuine or not having made unaided without prompting.

When the dying declaration made by the deceased is not coupled with the transaction of consequences which results in the death of the deceased or the statement made regarding the fact which has no nexus or connection with it or in other words having no remote reference to the death of the deceased, it would not be admissible under Indian evidence act.

In the case of Bhairon Singh v. State of M.P. [24] the body of the deceased lady was found in a well of the village. The cause of the death asphyxia due to drowning. She was married to accused about 10 years before the death of the incident take place. The trial court held that the incident took place accidentally. And the presumption of her dying declaration does not attract section 113-A and 113-B of Indian evidence act and the accused set free under section 304-B and 306 of the IPC.

But later on, the trial court held the accused guilty under section 498-A of IPC and section 3 of the dowry prohibition act,1961 and gives the punishment to accused of rigorous imprisonment for three years along with the fine of Rs. 15000. 

Again high court made changes in the judgment and accused convicted under section 498-A of IPC, the changes were the cause of the statement given by her brother that his sister(deceased) told him that the accused used him to force her as he wanted that her brother arranged a job for him and also demanded for dowry for her of Rs 1lakh. On the deposition brother of the deceased stated that the accused by putting a cloth in her mouth(deceased) beating him for dowry. 

Medical report

Medical reports are those reports which are provided by the doctor usually in criminal cases, they are admitted as evidence in a court of law when a doctor provides oral evidence while taking the oath. The report includes the mental condition, fitness of the disease whether he is able to give the statement or not. And sometimes forensic and autopsy reports also clarify that the deceased was saying right in his dying declaration. For example, there was a case in which the mother of the deceased, when hearing the cry of her son immediately reached to their room, where the deceased made the dying declaration in front of his mother that he was in love with some girl and she left her and due to this he commits the suicide. The time to reach in his room was estimated by the police in their investigation was about 2 minutes.

Here the question comes that if the mother was really saying the truth about the declaration as there was no one when the deceased was making the statement, the absence of medical fitness will remain in the dark. But the autopsy report conferred that decrease is the condition to survive for 6-8 minutes. So that the mother statement can be admissible in a court of law. In that perspective the role of medical report become crucial and if sometimes, if there is a plotting in dying declaration (which rarely happens as the law presumed that no one meet his maker with a lie on his lips) the report may contract the statement which creates the sense of suspicion and the statement made by the deceased can not be regarded as the sole base for the conviction. But the medical report did not discard the statement on the basis of the report in which it was stated that the nature of injuries sustained by the deceased. Moreover, if the medical report states the fitness of the deceased while taking the statement of the deceased by magistrate then there is no need for a separate test of fitness by the magistrate. 

Doctor statement

It is necessary that the dying declaration recorded by a magistrate should be endorsed by the doctor, as it gains more evidentiary value. But there are many situations when the statement is recorded by the doctor as due to circumstantial reasons and unavailability of magistrate. So the statement of doctor is regarded to be true and being a doctor, he understands about the condition of the deceased whether the deceased is able to make dying declaration or not. In the case where a burnt wife had been admitted in the hospital and the doctor who operates her, disclose the fact that the husband of her pour kerosene oil and set ablaze to her. At this point, the doctor records the statement point by point. Later on, it was found that records are also in favour and did not contradict the statement made by the deceased. The court held that the doctor has no other motive to make a false statement and the value of statement recorded by the doctor is admissible. But the statement made by the doctor is proven more relevant when there is an eye witness in order to endorse that particular dying declaration.

Dowry death, wife burning

When there is a situation after the three or four months of the marriage, where the wife is burnt by her husband or husband relatives for dowry purposes or for monetary gain. And in relation to this, she expressing the danger and threat to her life is somehow the expression which depicts the circumstance which leads to the death of the deceased. But when there is a contradiction found in the statement by the deceased, it would raise the presumption of suspicion and decrease its value as evidence. In case where wife by way of plotting set ablaze to her and when she was admitted to hospital, where she made the statement that her husband set on fire to her after some point of time it was discovered in the police investigation that the children of the deceased state that their father will never do this kind of act, moreover they also said that the deceased was tried for committing suicide earlier. And police also found that the relation between the husband and wife is not good. And deceased also think that her husband had some extramarital affair. All the facts show that there was a motive to lie. So the court held the dying declaration to be falsehood and set aside the conviction. And the court has reason to believe, as the person who took the deceased to the hospital was none other than her husband.

Evidentiary value of dying declaration

In the case of K.R Reddy v. Public Prosecutor [25], it was observed by the court that the evidentiary value of dying declaration made by the deceased:

There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian Evidence Act. and there is no compulsion while making of dying declaration to take an oath, but the truth of the statement can be determined by the cross-examination. The court has to ascertain necessary measures to check the sanctity of the statement made by the deceased. As in India law, it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is because, when the person is at his bed end all the desire and greed of person come to an end so probably there is no motive to lie. After that, the court must be satisfied with the condition that the deceased must be in a fit state of mind while making the statement. After all the measures assured by the court and satisfied that the statement is made voluntarily and true then it will be sufficient to accept the statement to finding conviction even without the corroboration.

In Khushal Rao v. State of Bombay [26] Apex Court laid down the following principles related to dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory & human character.

Exception of dying declaration

There are many circumstances in which the statement made by the dying person is not admissible in a court of law. These conditions are as follows:

• If there is no question for consideration about the cause of death of the deceased. For example, if a person in his declaration state anything which is not remote or having a connection with the cause of death than the statement is not relevant and hence not be admissible.
• The declarant must be competent to give a dying declaration, if the declaration is made by the child then the statement will not be admissible in court as it was observed in case of Amar Singh v. State of M.P [27] that without the proof of mental fitness and physical fitness the statement would not be considered reliable.
• The statement which is inconsistent has no value and can not be considered as evidentiary in nature.
• The statement made by the deceased should be free from any influential pressure and should be made spontaneous.
• It is perfectly allowed to the court if they reject any untrue statement which contradicting in nature.
• If the statement is incomplete in the sense which means it can not answer the relevant questions which are necessary to found guilty, and on the counterpart, statement deliver nothing so it will not be deemed to consider.
• Doctor’s opinion and the medical certificate should with the statement and support that the deceased is capable of understanding what statement he makes.
• If the statement is not according to the prosecution. In this regard, the following points should be taken into consideration by the apex court.
• While making the statement deceased must be in fit mind of the state.
• Should be recorded by the magistrate or by a police officer and   person in a case when deceased was so precarious
• A dying declaration should be recorded in question-answer form and written in words of the persons exactly who gives the statement.

Dying Declaration should be free and spontaneous

Dying declaration due to compulsion or pressure not be relied upon whereas dying declaration free from any biased relied upon. As it was held in the case of Krishna Lal v. Jagun Nath that the wife was burnt by the husbands-in-law and in her dying declaration she held that she was not burnt by her husbands-in-law and she was believed.

The dying declaration is not specifically mentioned in our penal law under Section 32(1) of IPC. it is the statement made by the person who is going to die, and that statement will be considered as evidence in court, how his death caused and who is the mugger. There are many conditions that relied upon the dying declaration that it should be in an adequate manner as dying declaration is the weapon who convicted the accused and stood as strong evidence. The admissibility of dying declaration accepted in our Indian court because the law presumes that in Leterm Mortem i.e in his last parting words the man will never lie as anyone will meet his maker with a lie on his lips. This is because a man who is going to die, end with all his needs and wants and his interest is no more passionate for self deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court has the right to reject the statement. Or there are other situations and circumstances which coupled with dying declaration for its admissibility which discussed above.

• (1885) ILR 7 All 385
• https://indiankanoon.org/doc/1330427/
• (1939) 41 BOMLR 428
• AIR 1962 SC 1252, 1961 CriLJ 315, 1962 3 SCR 869
• https://indiankanoon.org/doc/311284/
• https://indiankanoon.org/doc/272402/
• https://indiankanoon.org/doc/1260754/
• https://www.casemine.com/judgement/in/5b6b5bf79eff430da3fe35f4
• https://indiankanoon.org/doc/1810510/
• https://indiankanoon.org/doc/184024091/
• https://indiankanoon.org/doc/1918323/
• https://indiankanoon.org/doc/1865386/
• https://indiankanoon.org/doc/1863649/
• https://indiankanoon.org/doc/192156125/
• 1958 AIR 22, 1958 SCR 552
• https://indiankanoon.org/doc/56631905/
• https://indiankanoon.org/doc/98853/
• https://indiankanoon.org/doc/1713421/
• https://indiankanoon.org/doc/115725916/
• https://indiankanoon.org/doc/13911806/
• AIR 1979 SC 1505, 1979 CriLJ 1122, 1980 Supp (1) SCC 769, 1979 (11) UJ 412 SC
• 1950 AIR 169, 1950 SCR 453
• https://indiankanoon.org/doc/643400/
• 1976 AIR 1994, 1976 SCR 542
• https://indiankanoon.org/doc/154335829/

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Dying Declaration by Rape Victims: A Critical Analysis

38 Pages Posted: 27 Jan 2010

Varsha Rajora

affiliation not provided to SSRN

Date Written: January 20, 2010

Dying Declarations are the statements made by a dying person as to injuries which culminated in his death or the circumstances under which the injuries were inflicted. Statements made by a deceased long prior to the occurrence resulting in death are not Dying Declaration and not admissible in Indian Evidence Act. The general ground of admissibility of the evidence is that no better evidence is to be had. Dying declaration is based on the maxim "Nemo moriturus praesumitur mentire" which means "a man will not meet his maker with a lie in his mouth". It operates as an exception to the hearsay rule . Hearsay evidence is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence i.e. the oath and cross examination. They are not given any importance in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. It is an exception because if this evidence is not considered the very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. A Dying Declaration as envisaged by S 32 of the Indian Evidence Act need not necessarily be from a person who is dying at the time of making the statement. In addition, at the time of making such declaration, it is necessary that he or she should know that there is impending death. In other words, at the time of making such declaration it is a legal mandate that such person must entertain expectation of death. A rule peculiar to criminal cases is the exception to the rule respecting hearsay evidence which renders dying declarations as to the cause of death admissible in trials for murder and manslaughter. The earliest emphatic statement of it is to be found in woodcock's case, decided in 1789. This case refers to a decision in 1720 and to the case of R v. Reason and Tranter, decided in 1722. That case, however say nothing as to any limitation on the rule. A series of cases from 1678 to 1765 shows that during that period declarations of deceased persons as to the cause of their death were admitted even though the declarants had hopes of recovery when they were made. Dying Declaration is a statement made by a person who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. As a result, it is an exception to the Hearsay Rule, which prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial, because of its inherent untrustworthiness. If the person who made the dying declaration had the slightest hope of recovery, no matter how unreasonable, the statement is not admissible into evidence. A person who makes a dying declaration must, however, be competent at the time he or she makes a statement, otherwise, it is inadmissible. A dying declaration is usually introduced by the prosecution, but can be used on behalf of the accused. As a general rule, courts refuse to admit dying declarations in civil cases, even those for Wrongful Death, or in criminal actions for crimes other than the Homicide of the decedent. A dying Declaration is fairly well crystal by judicial decisions. But before it is relied on, it must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross-examination to test it genuineness or veracity.

Keywords: Dying Declaration, its Reliabilty, Conviction on its basis

Suggested Citation: Suggested Citation

Varsha Mansingh Rajora (Contact Author)

Affiliation not provided to ssrn ( email ), do you have a job opening that you would like to promote on ssrn, paper statistics, related ejournals, criminal procedure ejournal.

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Evidence & Evidentiary Procedure eJournal

Sexuality & the law ejournal, india law ejournal, forensic evidence, criminal procedures & ethics ejournal.

Exploring the Legal Significance of Dying Declarations: A Comprehensive Research Analysis

• To study the concept of dying declaration
• To analyze section 32 of the Indian Evidence act
• To look into flexibility of the process of recording dying declaration
• To study the disadvantages of the recording of dying declaration
• The deceased must be in a fit state of mind and capable of making a statement at the time of recording of dying declaration.  
• Prior to recording of statement of deceased, the doctor shall do a thorough and professional assessment of physical and mental condition of the patient.  
• Dying declaration is not mandatorily required to be recorded by any Magistrate or particular person. However, it is normally accepted that such declarations would be recorded by Magistrate or by doctor to eliminate chances of any doubt of false implication.  
• More sanctity is attached to a dying declaration recorded by Magistrate since the recording of dying declaration by a Magistrate assures the Court that the statement has been International Journal of Pure and Applied Mathematics Special Issue 1068 correctly understood and truthfully recorded by an impartial person.  
• At the time of recording of dying declaration as far as possible the language used by maker of declaration should be used. Dying declaration cannot be rejected merely because it was recorded in other language than that deposed by deceased 2001 Crl.LJ3780.  
• The prosecution should specifically bring on record that deceased had heard the statement recorded by Executive Magistrate and she admitted it to be true and correct. This is not mere formality but an essential part while recording the dying declaration.

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