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CONTENTS

Introduction ............................................................................................ 2
Meaning Of Dying Declaration ............................................................... 3
Content And Scope ................................................................................. 5
Rule Of Admissibility ............................................................................. 8
English Law And Dying Declaration .................................................... 11
Distinction Between English And The Law In India ............................. 13
Conclusion ............................................................................................ 15

INTRODUCTION
"Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie." "A man
will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying
admittance in evidence of dying declaration. "A dying declaration made by person on the verge
of his death has a special sanctity as at that solemn moment, a person is most unlikely to make
any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the
statement made by the deceased regarding the causes or circumstances leading to his death. A
dying declaration, therefore, enjoys almost sucrose not status, as a piece of evidence, coming as
it does from the mouth of the deceased victim. Once the statement of the dying person and the
evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts,
it becomes a very important and a 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 any corroboration"--is the
statement of law summed up by the Supreme Court in Kundula Bala Subrahmanyam v. State of
A.P.1 and reiterated in Laxmi v. Omprakash2. The Supreme Court further added such a
statement, called the dying declaration, is relevant and admissible in evidence 'provided it has
been made by the deceased while in a fit mental condition'.

The above statement of law, by way of introduction to this chapter is the crux of the whole law
of evidence regarding dying declaration. The law has become now well settled. Dying
declaration is admissible in evidence. A dying declaration, if found reliable, can form the basis of
conviction. A court of facts is not excluded from acting upon an uncorroborated dying
declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the
same footing as any other piece of evidence. It has to be judged and appreciated in the light of
the surrounding circumstances and its weight determined by reference to the principles
governing the weighing of evidence.

1
2

Bala Subrahmanyam v. State of A.P (1993) 2 SCC 684)


Laxmi v. Omprakash (AIR 2001 SC 2383. )

MEANING OF DYING DECLARATION


In laymans language, we can say that dying declaration is the statement made by a person who
is dying. But in legal sense it has got a different meaning. It is not that all the statements made by
a dying person can be termed as dying declarations. It is only that statement of the deceased,
which he made before his death and which shows the cause of death or the circumstances leading
to his death can be termed as dying declaration, provided the death of that person comes in
question before a judicial authority.
None of the language dictionaries define the word dying declaration jointly but the words dying
and declaration has been shown separately the literal meaning of which a declaration or
statement which is going to die. But if we go by these meanings the whole meaning of dying
declaration will loose its significance. Therefore this meaning cannot be assigned to the term
dying declaration.3
Whartons Law Lexicon, quoting from R v. Perry4 has stated about dying declaration as follows:
Deathbed or dying declarations are constantly admitted in evidence. The principle of this
exception to the general rule is founded partly on the lawful situation of the dying person, which
is considered to be as powerful over his conscience as the obligation of an oath, and partly on a
supposed absence of interest in a person on the verge of the next world, which dispenses with the
necessity of cross-examination. But before such declaration can be admitted in evidence against
a prisoner, it must be satisfactorily proved that the deceased, at the time of making them, was
conscious of his danger and given up all hopes of recovery.'
Dying declaration means the statement made by a person who believes that he is about to die, in
reference to the manner in which he received the injuries of which he is dying, or other
immediate cause of his death or in reference to the person who inflicted such injuries or of a
person who is charged with or suspected of having committed them. Such statements are

3
4

Oxford Dictionary.
R v. Perry (1909)2 K.B. 697

admissible in evidence as an exception to the hearsay rule in a trial for homicide and
occasionally, at least in some jurisdiction in other cases where the killing of the declarant is the
crime charged to the defendant.5
The dying declaration is thus the statement by the person as to cause of his death or as to any of
the circumstances relating to death. The words dying declaration mean a statement written or
verbal of relevant facts made by the person who is dead. Statements made by a person who
believes he or she is about to die, concerning the cause or circumstance surrounding his or her
impending death.

th

Blacks Law Dictionary 13 Edition.

CONTENT AND SCOPE


Under common law, a statement made by a person on the point of death is admissible in
evidence even if it is hearsay. That is, if X told Y that Z had stabbed him, then if Y told a court
under oath what X had said, this may be admissible evidence against Z. The reason this is
acceptable, while other forms of hearsay are not, is that it is assumed that a person who is dying,
and knows this to be the case, is unlikely to lie. To be admissible, the declaration must be made
by a person who has a genuine believe that death is imminent. The believe need not necessarily
be reasonable, and he may subsequently recover. Of course, if he does then he would be
expected to testify himself.

It becomes relevant under section 32 (1) of the Evidence Act6. It is an exception to the rule of
hearsay and makes admissible the statement of the deceased whether the death is homicidal or
suicidal provided the statement relates to the cause of death or exhibits circumstance leading to
his death. Greater solemnity and sanctity are attached to the words of a dying man because a
person on the verge of his death is not likely to tell lies or to concoct a case as to implicate an
innocent person but the court has to be on the guard against the statement of the deceased being a
result of either tutoring, prompting or a product of his imagination. The court shall also be
satisfied that the deceased was in a fit state of mind to make the statement after he had a clear
opportunity to observe and identify the assailants. Once the court is satisfied about its
authenticity and voluntariness, the court can found a conviction on the basis thereof in the
absence of any corroboration.

If the statement has been made when the deceased was under the expectation of death, it
becomes a dying declaration in evidence after her death. Nonetheless, even if she was no where
near the expectation of death, still such statement would become admissible under section 32(1)
of the Act; though not as dying declaration as such, provided it satisfies one of the two
conditions set forth in section 32(1) of the Act.
6

Hereinafter referred to as the Act

The phrase 'dying declaration' is not used in s 32 of the Act. The head note of the relevant section
reads as cases in which the Statement of Relevant Fact by Person is who is dead or cannot be
found etc, is relevant. The section as a whole deals with the relevant facts originating from a
person who is dead or who cannot be found or who has become incapable of giving of evidence
or whose attendance cannot be procured without an amount of delay or expense, which, under
the circumstances of the case, the court considers, unreasonable. But, while referring to s.32 (1)
the phrase is normally used to explain the essence of the provision. The phrase is quite popular
because of judicial usage and endorsement in a number of cases, which continues even today.
Seemingly, the attributed significance to the dying declaration as a piece of evidence is because
of its hearsay character. Speaking on Indian context, due to unabated occurrence of heinous
offences like dowry related deaths and homicides, the dying declaration as a very effective
means of proving complex and hidden facts has acquired phenomenal importance.
Dying declaration considered as hearsay because the person who made such a statement is not
available before the court to depose. In addition, the person who heard from such a dead person
and who appears before the court to depose the facts in question is not in a position to vouchsafe
whether those facts which he heard, from the dying person are true or not. At the outset, it is
necessary to note, that a dying declaration as envisaged by s.32(1) 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 not necessary that he or she should know that there is impending death. In other
words, at the time of making such declaration, there is no legal mandate that such person must
entertain expectation of death.
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. However, it is settled
law that it is not safe to convict an accused person merely on the evidence furnished by a dying
declaration without further corroboration because such a statement is not made on oath and is not
subject to cross-examination and because the maker of it might be mentally and physically in a
state of confusion and might well be drawing upon his imagination while he was making the
declaration. It is in this light that the different dying declarations made by the deceased and
sought to be proved in the case have to be considered.

This provision has been made by the legislature; advisedly; as a matter of sheer necessity by way
of an exception to the general rule that hearsay is no evidence and that evidence which has not
been tested by cross-examination, is not admissible. The purpose of cross-examination is to test
the veracity of the statements made by a witness. In the view of the legislature, that test is
supplied by a solemn occasion when it was made, namely, at a time when the person making the
statement was in danger of losing his life. At such serious and solemn moment, that person in not
expected to tell lies and secondly; the test of cross-examination would not be available. Thus, a
statement made by a dying person as to the cause of death, has been accorded by the legislature;
a special sanctity which should, on first principles, be respected unless there are clear
circumstances brought out in the evidence to show that the person making the statement was not
in expectation of death, not that the circumstance would affect the admissibility of the statement;
but only its weight. It may also be shown by evidence that a dying declaration is not reliable
because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to
believe its having been put into the mouth of the dying man, when his power of resistance
against telling a falsehood, was ebbing away; or because the statement has hot been properly
recorded.

It is, as if the maker of the dying declaration was present in the court, making a statement, stating
the facts contained in the declaration, with the difference that the declaration is not a statement
on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a
particular dying declaration suffers from any infirmities, either of its own or as disclosed by
other evidence adduced in the case or circumstances coming to its notice, the court may as a rule
of prudence look for corroboration and if the infirmities by such as render the dying declaration
so infirm as to prick the conscience of the court, the same may be refused to be accepted as
forming safe basis for conviction. In the case at hand, the dying declarations are five.

However, it is not the number of dying declarations, which will weight with the court. A singular
dying declaration not suffering from any infirmity and found worthy of being relied on may form
the basis of conviction. On the other hand if every individual dying declaration consisting in a

plurality is found to be infirm, the court would not be persuaded to act thereon merely because
the dying declarations are more than one and apparently consistent.

RULE OF ADMISSIBILITY
A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of
the accused nor therefore not tested by cross-examination is yet admissible in evidence as an
exception to the general rule against the admissibility of hearsay. The admissibility is founded on
the principle of necessity. The weak points of a dying declaration serve to put the court on its
guard while testing its reliability and impose on the court an obligation to closely scrutinize all
the relevant attendant circumstances7. One of the important tests of the reliability of the dying
declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit
state of mind and capable of making a statement at the point of time when the dying declaration
purports to have been made and/or recorded. The statement may be brief or longish. It is not the
length of the statement but the fit state of mind of the victim to narrate the facts of occurrence
which has relevance. If the court finds that the capacity of the maker of the statement to narrate
the facts was impaired or the court entertains grave doubts whether the deceased was in a fit
physical and mental state to make the statement the court may in the absence of corroborate
evidence lending assurance to the contents of the declaration refuse to act on it.

In Bhagwan Das v. State of Rajasthan8 the learned Sessions Judge found inter alia that it was
improbable if the maker of the dying declaration was able to talk so as to make a statement. This
Court while upholding the finding of the learned Sessions Judge held the dying-declaration by
itself insufficient for sustaining a (SIC) con charge of murder. In Kako Singh @ Surendra Singh
Vs State of M.P.9 the dying declaration was refused to be acted upon when there was no specific
statement by the doctor that the deceased after being burnt was conscious or could have made

Tapinder Singh v. State of Punjab 1971 (1) SCJ 871


Bhagwan Das v. State of Rajasthan - AIR 1957 SC 589
9
In Kako Singh @ Surendra Singh Vs State of M.P. -AIR 1982 SC 1021
8

coherent statement. In Darshan Singh Vs. State of Punjab

10

this Court found that the deceased

could not possibly have bene in a position to make any kind of intelligible statement and
therefore said that the dying declaration could not be relied on for nay purpose and had to be
excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab

11

the dying

declaration was recorded by the investigating officer. This Court excluded the same from
consideration for failure of the investigating officer to get the dying declaration attested by the
doctor who was alleged to be present in the hospital or any one else present.

A dying declaration made to a police officer is admissible in evidence, however, the practice of
dying declaration being recorded by investigating officer has been discouraged and this Court
has urged the investigating officers availing the services of Magistrate for recording dying
declaration if it was possible to do so and the only exception is when the deceased was in such a
precarious condition that there was o other alternative left except the statement being recorded by
the investigating officer or the police officer later on relied on as dying declaration. In Munnu
Raja and Anr. Vs. The State of Madhya Pradesh12, this Court observed - "investigating officers
are naturally interested in the success of the investigation and the practice of the investigating
officer himself recording a dying declaration during the course of an investigation ought not to
be encouraged". The dying declaration recorded by the investigating officer in the presence of
the doctor and some of the friends and relations of the deceased was excluded from consideration
as failure to requisition the services of a Magistrate for recording the dying declaration was not
explained. In Dalip Singh Vs. State of Punjab

13

this Court has permitted dying declaration

recorded by investigating officer being admitted in evidence and considered on proof 'that better
and more reliable methods of recording dying declaration of injured person' were not feasible for
want of time or facility available. It was held that a dying declaration in a murder case, though
could not be rejected on the ground that it was recorded by a police officer as the deceased was
in a critical condition and no other person could be available in the village to record the dying

10

Darshan Singh Vs. State of Punjab - AIR 1983 SC 554


Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571
12
Munnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199
13
Dalip Singh Vs. State of Punjab AIR 1979 SC 1173
11

declaration yet the dying declaration was left out of consideration as it contained a statement
which was a bit doubtful.

ENGLISH LAW AND DYING DECLARATION


A dying declaration under English Law means the statement of a person who has died explaining
the circumstances of his death. According to English Law, the statement is relevant only when
the charge is that of murder or manslaughter. In cases of homicide, statements made by a person,
since deceased, are admissible to prove the cause and circumstances of the man's death. Such
statements are called 'dying declarations'. But such statements under the English law should be
made when he was in "settled, hopeless expectation of imminent death". In Halsbury's Laws of
England, the law as to dying declaration has been stated thus:

Upon the trial of an indictment for murder or manslaughter, and only in such cases a verbal or
written statement made by the deceased person whose death is thus subject of the charge
although that statement was not upon oath and was not made in the presence of the defendant, is
admissible in evidence either against or for the defendant, provided that it was made at a time
when all hope of living had left the mind of the declarant that is, the declarant must have
entertained a settled hopeless expectation of death, death being imminent or impending, but he
need not have been expecting immediate death. So Many cases have been decided which
illustrate the application of this principle, and show in what circumstances dying declarations
have been held to be admissible or inadmissible in evidence. Dying declaration is nothing but a
statement, written or oral, made by a person who is dead. Such statement is relevant under
section 32.

Their admissibility rests on the principle that a sense of impending death produces in a man's
mind the same feeling as that of a conscientious and virtuous man under oathNemo moriturus
praesumuntur mentiri. "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 considerations to speak the truth; a 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"

The fact that the deceased believed that his death was impending may be shown by statements
made by him at the time, or by evidence that his physical condition or the nature of the wounds
inflicted upon him was such that he must have so believed A dying declaration, which on the
face of it is incomplete, is inadmissible. The question whether the deceased had such a belief in
impending death as to make a declaration admissible as a dying declaration is for the judge and
not for the jury. A statement made in the first instance under such circumstances as to render it
inadmissible as a dying declaration may be admitted as evidence, if it is afterwards repeated by
the deceased or by some other person at his request and assented to by him under circumstances
which would have rendered it admissible, if it had been then made for the first time. It is not
objection to the admissibility of a dying declaration that it was made in answer to leading
questions, though that fact may affect its weight as evidence. The constant reiteration of the
words "I am dying" by a woman who had taken poison was held to be insufficient "as the
expression of the real idea of impending death"14 but "I am dying, look to my children", was held
sufficient15

The pales of a considerable interval between the making of the declaration and the death of the
deceased does not render it inadmissible if at the time when it was made he had the apprehension
that death was impending. A dying declaration by a person who is, by law, incompetent, as a
witness is inadmissible. The Indian law on the subject differs materially from the English rule.

14
15

R v. Abbot, 67 JP 151
R v. Goddard, 15 Cox 7

DISTINCTION BETWEEN ENGLISH AND THE LAW IN INDIA


The first clause is widely different from the English law upon the subject of dying declaration,
according to which: (a) this description of evidence is not admissible in any civil case; and (b) in
criminal cases only in the single instance of homicide, that is, murder or manslaughter, where the
death of the deceased is the subject of the charge and the circumstances of the death are the
subject of the dying declaration. Both in England and America, evidence of this description
(dying declarations), is not admissible in any civil case and in criminal cases it is not admissible
upon charges other than homicide; or as to homicides other than that of the declarant. On the
other hand, under the Indian Evidence Act the statement is relevant whatever may be the nature
of the proceeding, in which the cause of the death of the person who made the statement comes
into question. Further, according to English law, certain conditions are required to have existed
at the time of declaration, namely, it is necessary that the declarant should have been in actual
danger of death; secondly, that the should then have had a full apprehension of his danger and
lastly, that death should have ensued. The existence of the latter condition is of course as
necessary under that Act as under the English rule, inasmuch as the statement is admissible only
in cases in which the cause of the death of the person who made it comes into question. But,
under this Act, the statement is relevant whether the person who made it was or was not at the
time when it was made, under expectation of death.

Under the Indian Law for a declaration to be relevant under s 32(1), it is not necessary that the
declaration should have been made when the person making the same was in actual danger of
death and had given up all hope of recovery at the time when he made the declaration 16.
Therefore, whether the declarant was or was not in actual danger of death, and knew or did not
know himself to be in such danger, are considerations, which will not affect the admissibility of
this kind of evidence in India. But these considerations ought not to be laid aside in estimating
the weight to be allowed to the evidence in particular cases. Under the Law which was in force
prior to this Act (s 371, Act 25 of 1861) s 29, Act 2 of 1865, and which with one modification

16

Poolakkal Klinchli v State 1986(2) Crimes 225 (Ker) (DB)

relating to the entertainment by the deceased of hopes of recovery was similar in this respect to
the English law, it was held that before a dying declaration could be received in evidence, it must
be distinctly found that the declarant knew or believed at the time he made the declaration, that
he was dying or likely to die. Of course, before the statement can be admitted under this section,
the declarant must have died. Where a person making a dying declaration chances to live, his
statement cannot be admitted in evidence as a dying declaration17though it may be relied on
under s. 157 to corroborate the testimony of the complainant when examined in the case. The
statutory provision in s. 164 Criminal Procedure Code should be followed if the statement in
inculpatory and in the nature of a confession.

Hence, under the English Law, it is essential to the admissibility of dying declaration that the
declarant must have entertained a settled hopeless expectation of death. But he need not have
been expecting immediate death. Indian law does not put any such restrictions. It is not required
under Indian law that the maker should be under the expectation of imminent death, nor is it
restricted to the case of homicide only. Before a dying declaration may be admitted, it must be
proved that the maker is dead. If the maker survives, it may be used to corroborate or contradict
his statement.

17

Mati Singh v State AIR 1964 SC 900

CONCLUSION
Under the Indian Law of Evidence ,a dying declaration is relevant whether the person who made
it was or was not, at the time when it was made under expectation of death that is, it is
immaterial whether there existed any expectation of death at the time of the declaration. In a
Calcutta case it has been observed that the necessity of recording a dying declaration arises only
when the hopes of life are given up18 . It is common sense that there is no need to record dying
declaration until that stage is reached or it is apprehended that a person will not survive.
However, in English law the position is different, it is held that before a dying declaration was
admitted it should be proved that the person making it knew that he was dying or believed
himself to be in danger of approaching death.
The admissibility of dying declaration is not confined to the case of homicide only, but it would
be admissible, whatever the charge may be, provided the cause of death comes under enquiry: In
India in a charge of rape, a woman's dying declaration is admissible as to the circumstances of
the transaction resulting in her death. In England a dying declaration is not admissible to prove
rape19 . The evidence of this description (dying declarations), in English law is not admissible
upon charges other than homicide; or as to homicides other than that of the declarant.
A dying declaration is admissible in this country in civil suits, under the terms, "whatever may
be the nature of the proceeding in which the cause of death comes into question." Thus in a suit
for damages for death caused by a railway accident due to the negligence of the company, the
declaration of the passenger killed, as to the cause of his death is admissible. Under English law
dying declaration is not admissible in any civil case and in criminal cases it is not admissible
upon charges other than homicide; These are the principal points of distinction between English
and Indian laws. Therefore, English authorities should be very cautiously referred to in deciding
cases. A dying declaration under the Act assumes a character very widely different from what it
is under the English law, as it is relevant under it whether the person who made it was or was not
when it was made under expectation of death, the rule of English law restricting the admissibility
of dying declarations to cases of homicide had no application in India. The nature of proceeding
18
19

Tehal v. S, AIR 1979 SC1347


R v. New ton, 1 F & F 641], or robbery [R v. Lloyd, 4 C & P 233

in which the cause of death comes into question need not necessarily be a charge of murder or
homicide. It may be a charge of a different nature or it may be a civil action

It is submitted that although the Act has made a great departure from the English law in regard to
the conditions of admissibility of dying declarations, the greatest caution must be exercised in
considering the weight to be given to this species of evidence on account of the existence of
many circumstances which may affect their truth and the principles of English law should be
adhered to as far as possible. Nothing short of a settled, hopeless expectation of imminent death
in the mind of the declarant, would induce an English judge to admit such evidence. Even a
sense of impending death does not always rouse the same feelings in every one and there may be
persons who cannot get rid of the passions of anger or revenge even in the moment of death. It
should be borne in mind that such a statement is not an oath; neither can there be any crossexamination. Moreover the statement is generally made at the time when exhaustion and strong
physical pain deaden all feelings and confuse the declarants intellect. Hence when dying
declarations are received, their weight must depend greatly on the circumstances under which
they are made. Their creditability and value will also vary with the circumstances of each
particular case and the nature of the recording.