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INTRODUCTION
Dying declaration is bases on the maxim Nemo moriturus praesumitur
mentire i.e. a man will not meet his maker with a lie in his mouth. The statements
made by a person as to the cause of his death or as to circumstances of the
transaction resulting in his death is called a dying declaration. Section 32(1) of the
Indian Evidence Act talks about dying declaration.1 A dying declaration is admissible in evidence even though it has not been given on oath and the person making
it cannot be cross-examined. It is an exception to the rule against hearsay. This
exception, as such dates back as far as the first half of the 1700s, the period
when the hearsay rule was coming to be systematically and strictly enforced.2 The
custom of using dying declaration probably comes down as a tradition long before
1.S. 32(1) of the Indian Evidence Act provides that a statement by a person since deceased,
as to the cause of his death or any of the circumstances of the transaction that resulted into
his death is relevant, irrespective of the proceedings in which the cause of his death comes
into question.
3.Id.
4.Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co.,
Nagpur, 1999, p. 633.
1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case ''Queen vs Abdulla5'', it was held that if
the injured person is unable to speak, he can make dying declaration by
signs and gestures in response to the question.
4. If a person is not capable of speaking or writing he can make a gesture in the
form of yes or no by nodding and even such type of dying declaration is
valid.
5. It is preferred that it should be written in the vernacular which the patient
understands and speaks.
6. A dying declaration may be in the form of narrations. In case of a dying
declaration is recorded in the form of narrations, nothing is being prompted
and every thing is coming as such from the mind of the person making it.
OBJECTS;
1. The presumption is '' a person who is about to die would not lie''.
2. It is also said that '' Truth sits on the lips of a person who is about to die''.
5ILR 7 385
3. The victim is exclusive eye witness and hence such evidence should not be
excluded.
WHO MAY RECORD A DYING DECLARATION ?
1. It is best that it is recorded by the magistrate.
2. If there is no time to call the magistrate, keeping in view the deteriorating
condition of the declarant, it can be recorded by anybody e.g. public servant
like doctor or any other person.
3. It cannot be said that a dying declaration recorded by a police officer is
always invalid.
4. If any dying declaration is not recorded by the competent Magistrate, it is
better that signatures of the witnesses are taken who are present at the time
of recording it.
3. Yet, in case of where it was not possible to take fitness from the doctor,
dying declaration has retained its full sanctity if there are other witnesses to
testify that declarant was in fit condition of the mind which did not prevent
him from making dying declaration.
4. However, it should not be under the influence of anybody or prepared by
prompting, tutoring or imagination. If any dying declaration becomes
suspicious, it will need corroboration.
5. If a declarant made more than one dying declarations and if these are not at
variance with each other in essence they retain their full value. If these
declarations are inconsistency or contradictory, such dying declarations lose
their value.
NOW IT IS VERY ESSENTIAL TO KNOW THE CONDITIONS FOR
ADMISSIBILITY AND EVIDENTIARY VALUE OF A DYING
DECLARATION. THE TABLE GIVEN INFRA SUCCINCTLY EXPLAINS
THE SAME:
CONDITIONS FOR
EVIDENTIARY VALUE
ADMISSIBILITY
have died.
2. Admissibility of dying
declaration is explained in
the section 32 (1) of Indian
Evidence Act.
3. When the statement is made
by a person as to the cause of
his death, or any of the
circumstances of the
transaction which resulted in
his death, in cases in which
the cause of that persons
death comes into question.
can be avoided.
identical.
6. In Jai Prakash vs State of
Haryana9, it was observed
that '' a statement of victim
considered as a dying
declarant must be in
declaration.
question.
9. However, the declarant need
not be under expectation of
death unlike English Law.
10.The declarant need not be
7
declaration.
7. In some cases, F.I.R was also
taken to be a dying
8. Inconsistent dying
declaration is no evidentiary
value. ( Smt Kamla vs State
of Punjab10)
9. The dying declaration
recorded by the Clerk in the
presence of Magistrate not
inadmissible. Scribe need not
based on it without
voluntary.
being killed8.
8 Pakala Narayana Swami vs Emperor
11(52Cr.L.J883)
12 AIR1981SC1578.
13 CriLJ19881313
hearsay.
DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW:
Sense of Impending Death
The law relating to dying declaration in India and England differs
significantly. In England a dying declaration should have been made under the
sense of impending death, i.e.; the person making it should have given up all hopes
of living (Settled hope less expectation of death).16 Whereas a dying ' declaration in
India is relevant whether the person who made it was or was not, at the time it was
made under the expectation of death. Thus, in India it is immaterial whether there
existed any expectation of death at the time of the declaration. In R v. Jenkins17 the
deceased made a statement implicating the accused. Her dying declaration included
the words that it was made 'with no hope of my recovery'. While it was being read
15 Dr. R. K. Gorea, Critical Appraisal of Dying DeclarationJIAFM, 2004, 26(1).
to her she sought to amend the same and asked to add 'present' before hope. Thus,
her dying declaration contained the words that it was made 'with no present hope
of my recovery'. The Court held, that the statement could not be received in
evidence since, at the time of making it the deceased I was not under settled
hopeless expectation of death and her dying declaration suggested that at the time
of making it she entertained a faint hope of recovery.
Had the same situation arisen in India, it would have been admitted in
evidence since in India any statement made by a person (since deceased) as to the
cause of death circumstances of the transaction resulting in death of that person is
admitted in evidence. Thus, her statement implicating the accused would have
sufficed to make it admissible under Section 32(1) of the Act. The problem with
English position is that of ascertaining the existence of knowledge of approaching
death. Since, this ascertainment is to be done by the Judges depending upon the
circumstances of each case; it always leaves the possibility of subjectivity creeping
in.18
Scope of Application
In England the admissibility of a dying declaration is confined only to the
cases of homicide whereas in India a dying declaration will be admissible in any
18.
case in which the cause of death of a person comes into question. In R v. Mead19
the accused was charged with perjury. He obtained an order for a new trial and shot
the deceased before it took place. A dying declaration made by the deceased
concerning the transaction out of which the prosecution for perjury arose was
rejected. The Court held that the dying declarations are only admissible where the
death of the deceased is the subject of the charge, and the circumstances of the
death are the subject of the declaration. For ex ample, in India in a charge of rape, a
woman's dying declaration is admissible even if the death of the deceased is not the
subject-matter of the charge, provided that the question of her death comes in
charge of rape. But, in England such dying declaration is not admissible to prove
rape.20 Since, in such cases, the death of the deceased is not the subject-matter of
the charge.
In India a dying declaration is admissible even in civil suits also. Section
32(1) of the Act clearly provides that such statements (i.e. statements as to cause of
death or as to any ............. his death) are relevant whatever may be the nature of
the proceedings in which the cause of his death comes into question. Thus, in India
admissibility of a dying declaration does not depend upon the nature of the
proceedings. But in England a dying declaration is admitted in evidence only for
19.
the criminal cases and that too it is restricted only to those cases where the death is
the subject-matter of the charge.21
Evidentiary Value
Another distinction between Indian and English law is with respect to
evidentiary value to be attached to a dying declaration. This difference was pointed
out in the case of Plus Jasunga S/oAkumu v. R.22 where the Court emphasized that
the weight to be attached to a dying declaration recorded under S. 32(1) of the Act
would be less than the weight to be attached to a dying declaration under common
law rules. The reasoning behind such observation was that the dying declaration
under S. 32(1) would lack that special quality that is thought to surround a
declaration made by a dying man who was conscious of his condition and who had
given up all hopes of survival.
22.(1954) 21 EACA 331, c.f., Nambhard v.The Queen, (1982) 1 All ER 183 PC.
tion of a person not competent to be a witness will carry little weight.23 In India, a
child being a competent witness24, tender age cannot be a ground for the exclusion
of his/her declaration. Judicial pronouncements in this area, while recognizing
competency of a child as a witness have stressed on the need to evaluate their
evidence more carefully and with greater circumspection.25
Thus, there are significant differences between Indian and English law in the
area of dying declaration. English law is not only rigid but also narrower in its
scope. The Law Commission Of England in its 245th report on "Evidence in
Criminal Proceedings : Hearsay and Related Topics" has aptly commented that,26
23.M. Monir, Law of Evidence 7th ed. Universal Law Publishing Co. Allahabad, 2006, p.123.
24.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."
26.http ://www.lawcom.gov.uk/74.htm.
"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."
RELEVANCE OF DYING DECLARATION :
27.
value.28 The paragraph makes it very clear that the person making the declaration'
should not necessarily be under expectation of death. Discarding the English
principle of accepting a dying declaration only when it is made under the settled
expectation of death, this section takes away the sincerity of the statement that is
desired.
The traditional argument that, the justification for admitting a dying
declaration derives from the proposition that no one would wish to meet his maker
with a lie oil' his lips is slightly problematic in today's context. It might continue to
be true of some God-fearing individuals, but in modern society it carries little or no
conviction where the majority of citizens are concerned. 29 Redfield, C.J., in
Greenleaf, Evidence, write! that a dying declaration is not received upon any other
ground than that of necessity, Admission on the ground that the declarant was
under the most solemn sanction to speak the truth is far from presenting the true
ground of admission. The chief grounds of this exception in the law of evidence is
the presumption of there not being equally satisfactory proof of the same facts, and
the consequent probability of crime going unpunished.30
28.M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995) 7 NLSJ, p. 88.
29.R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div)), c.f.
www.westlawinternational.com
The main problem with dying declaration is not so much one of sincerity or
faulty memory, but one of perception. Motive of hatered and revenge may lead a
declarant to make false statements, even with the approach of death. The declarant
may exhibit strong feeling of hatred and revenge and if he is in such a frame of
mind, the supposed guarantee of trustworthiness fails, and the' declaration should
not be admitted.31
Dying declaration has been subject to judicial scrutiny on innumerable
occasions; the need of relying on a dying declaration has been questioned
especially in those cases where the killing was not secret and there were other
adequate testimony as to the circumstances of the death.
Evidentiary Value to be Attached to A Dying Declaration
There doesn't seem to be much controversy as far as, the question of a dying
declaration being a significant piece of evidence is concerned. The divergent and
conflicting Judicial opinion has been with respect to value and importance to be
attached to dying declaration in basing the conviction of an accused: The Courts in
India have held time and again, that a dying declaration before it could be relied
upon must pass a test of reliability, as it is a statement made in the absence of the
30.Supra, note 2.
31.Supra, note 2.
33.I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra, note 18, p. 413.
34.Supra note 22
dying declaration.35Since then, the Supreme Court in a catena of cases has held that
conviction can be based on an uncorroborated dying declaration provided that the
Court has come to the conclusion that it is true and voluntary. The most significant
being the case of Khushal Rao v. State of Bombay36 where, the Supreme Court laid
down several propositions with respect to dying declarations and these
propositions till date continue to govern the law relating to dying declarations. The
Court held, that there is no absolute rule of law that a dying declaration cannot
form the sole basis of conviction unless it is corroborated, nor can it be said that a
dying declaration is a weak piece of evidence. The Court further held that a dying
declaration stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to the principle
governing the weighing of evidence. Speaking on the same line the Supreme Court
held in the case of Padmaben Shamalbhai Patel v. State of Gujarat37 that, "a
dying declaration is an independent piece of evidence-neither extra strong nor
weak and can be acted upon without corroboration if it is found to be otherwise
true and reliable."
35.Ram NathMadho Prasad v. State of M.P., AIR 1953 SC 420. (Even in this case the above
observation of the Court came in light of the fact that the deceased was shot at during a
cloudy, dark night thereby making it highly impossible for him to recognize the person.
Since, there was a possibility of the dying declaration not containing the truthful account of
what happened, the Court insisted on the corroboration of the dying declaration.)
38.The Supreme Court in Paniben v. State of Gujarat, has summed up the principles
goverining dying declarations. Some of the important principles are as follow.
(1) It is neither a rule of law nor prudence that a dying declaration cannot be acted
upon without corroboration. If the Court is satisfied that the dying declaration is true
and voluntary it can base a conviction on it, without corroboration.
(2) The Court has to scrutinize the dying declaration carefully and ensure that the
declaration is not the result of tutoring, prompting or imagination and the deceased
had opportunity to observe and identify the assailants and was in a fit state to make
the declaration.
(3)
Where a dying declaration is suspicious it should not be acted upon with out
corroborative evidence.
|4) Normally the Court in order to satisfy whether the deceased was in a fit state of
mind while making dying declaration look up to the medical opinion. But, where the
eyewitness has said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail.
exclusion.39 In situation such as above the declaration with respect to other person's
death also need to be admitted in order to prevent the miscarriage of justice. The
law commission of India, in its sixty-ninth report on the Indian Evidence Act, 1872
observed that the language of the Section is even now capable 1 a wider
construction". Accordingly it recommended that, an explanation II might be added
to Sec. 32 (1) on the following lines;
"The circumstances of the transaction which resulted in the death may
include facts relating to the death of another pel son."40
* Procedures and Precautions:
Section 32(1) of the Act is silent about the person to whom a dying
declaration can be made and the mode of making such a dying declaration. The
same has rightly not been provided since, for someone who is breathing his last, it
would be ridiculous to make him/her undergo several procedures before he/she
could get his/her dying declaration recorded. But, the absence of sued provisions
gives rise to several questions, For example, can a dying declaration made to the
only family member present at the time of killing be believed? Can an investigation officer record a dying declaration? Will the statement made to a magistrate
under Section 164 of the Code of Criminal Procedure cover a dying declaration as
39
Supra, note 2.
40
well? What happens in cases where there is no certification by the doctor to the
effect that the declarant was in a fit state of mind while making the declaration?
There cannot be straight answers to such questions since, the admissibility of a
dying declaration is very fact specific and to a great extent is determined by the
circumstances under which it was made.41
Section l62 (l) of the Code of Criminal Procedure provides that any
statement made to a police officer during the course of investigation is
inadmissible. But Clause of the same section makes an exception in favour of
dying declaration by providing that, the provisions of this section shall not apply to
statement falling within the provisions of S. 32(1) of the Act. The Courts have been
hesitant to admit dying declarations made to an investigation officer, for the
obvious reason that investigating officers being interested in the success of
investigation might tamper with the dying declaration to tilt the balance in their
favour. The Supreme Court in the case of Dalip Singh v. State of Punjab42has held
that it is better to leave dying declarations made to police officers- during instigation out of consideration until and unless prosecution satisfies the Court as to
why it was not recorded by a magistrate or doctor. It further held that such declarations might be relied upon if there was no time or facility for adopting the better
41
42
method. Several High Courts have also held that it is not prudent to base
conviction on a dying declaration made to an investigating officer and the practice
of the investigating officer recording dying declaration should not be encouraged.43
It all depends on the facts and circumstances of the case. Thus, where the
dying declaration recorded by the police officer was natural, coherent, truthful,
narrating incident without embellishment and explicitly identifying accused, such
dying declaration was held to be valid.44 But, where the investigating officer had
recorded the dying declaration even before the victim was certified by the doctor to
be fit for making a statement and though the victim survived for two weeks
thereafter, the investigating officer made no efforts to get this statements recorded
by a magistrate, it was held, that no reliance could be placed on such dying
declaration.45
43
.AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan,
1993 Cr. L. J. 2696 (Raj)
44
.I. L, R. (1979) 1 Del. 752, c.f; Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence,
vol. 1 Madras Law journal, Madras, 1998, p. 516.
45
In Rambai v. State of Chhattisgarh,46It was held that if the person recording the
dying declaration is satisfied that the declarant is in a fit medical condition to make
a dying declaration then such dying declaration will not be invalid solely on the
ground that the doctor has not certified as to the condition of the declarant to make
the dying declaration.
Similarly, there is no hard and fast rule that a doctor's certificate as to the mental
fitness of the deceased is prerequisite for the admissibility of a dying declaration in
evidence. A constitutional bench of the Supreme Court in the case of Laxman v.
State of Maharashtra47 while rejecting the contention of the appellant, that since
the certification of the doctor was not to the effect that the patient was in a fit state
of mind to make the statement, the dying declaration could not form the sole basis
of conviction, held, that it cannot be said that since there is no certification as to
fitness of mind of the declarant, the dying declaration is not acceptable. The Court
held that what is essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of mind. The Court
further held that a certificate by doctor is essentially a rule of caution and therefore,
46
(2002) 8 SCC 33
47
the voluntary and truthful nature of the declaration can be established otherwise.
There might arise situations where it would not have been possible to get a doctor,
thus a dying declaration recorded in such situations cannot be rejected merely
because there was no one to certify the fact that the deceased was in a fit state of
mind while making the statement. In such situations the Courts need not reject the
dying declaration but should subject it to strict scrutiny to verify the truth and
genuineness of its contents. Once the Court is satisfied that the dying declaration
was recorded without deceased,being tutored, the same should be accepted and
relied upon.48Thus, a dying declaration should not be rejected merely on the ground
that certain formalities were not complied with. As long as it is truthful and
voluntarily made it should be relied upon.
In Smt. Paniben v. State of Gujarat,49the Supreme Court has laid down in several
principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration.
48
49
(iii) The Court has to scrutinize the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify the assailants and was in a fit
state to make the declaration.
(iv)Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence
(v) Where the deceased was unconscious and could never make any dying
declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction.
(vii) Merely because a dying declaration does contain the details as to the
occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But where
the eye-witness said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration,
one first in point of time must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable, it has to be accepted.
50
CONCLUSION :A dying declaration is indeed an important piece of evidence. So much so that conviction can be based solely on the basis of a dying declaration. An analysis of both
English and Indian position makes it very clear that dying declarations continue to
enjoy sacrosanct status in evidence. The question that needs to be answered is: how
relevant dying declarations are in today's context and how much reliance can be
placed on it? The basis for the sacrosanct status of dying declarations continues to
be the good old belief 1 that a man will not meet his maker with a lie on his lips.
This belief presupposes that people are religious and they will not lie on their
deathbed. But, this does not seem to; happen in real life where feelings of hatred,
revenge and many times love take precedence over the urge to speak the truth. This
ironically belies the very principle underlying the admittance of dying declarations,
i.e. a man will not meet his maker with a lie on his lips. The general principle on
which this species evidence is admitted is that they are declarations made in
extremity, when the person is at point of death and when every hope of this world
is gone. At that point of time every motive to falsehood is silenced and the mind is
induced by the most powerful consideration to speak the truth. Such a Solemn
situation is considered by the law as creating an obligation equal to which is
imposed by a positive oath administered in a court of justice. The dying
declarations are weak kind of evidence even though they are based on the principle
that a person would not die with a lie in his mouth.The law related to dying
declaration need certain changes to be incorporated into it, so as to make it more
relevant in todays context.
Bibliography
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Declaration J 297,Cri.L.J.2005
Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn
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Dr. R. K. Gorea, Critical Appraisal of Dying DeclarationJIAFM, 2004,
26(1).
Avatar Singh Principles of the Law of Evidence,16th ed.2007,
M. Monir, Law of Evidence 7th ed
Neha Vijayvarigya, "Admissibility Of Dying Declaration :Whether
Justified2006 (1) Cri.LJ
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NLSJ,
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