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. Hearsay
evidences are not given any weightage 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. Dying declaration is an exception to this rule because if
this evidence is not considered 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. Sometimes it the best evidence in
such situations. Its admissibility is explained in the section 32 (1) of Indian
Evidence Act. According to this section 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. Such statements are relevant whether
the person who made this was expecting death or not 1[1]In English law he
must be under expectation of death only then this declaration is valid. This
declaration is valid both in civil and criminal cases whenever the cause of
death comes into question. If we read the various judgments on the
admissibility of dying declaration at times various judges have taken
diagonally opposite views and different explanations have been offered
though the motive in all have been to provide justice to the people. Main
thing is that if these declarations seem trustworthy to courts these retain
their full values. Most important point of consideration is that victim was in a
fit condition of mind to give the statement when recording was started and
remained in fit condition of mind till the recording of the statement finished.
Merely stating that patient was fit will not serve the purpose. This can be
best certified by the doctor who knows best about the condition of the
patient. But even in conditions where it was not possible to take fitness from
the doctor, dying declarations have retained their full sanctity if there are
other witnesses to testify that victim was in such a condition of the mind
which did not prevent him from making statement. Medical opinion cannot
wipe out the direct testimony of the eyewitness stating that the deceased
was in fit and conscious state to make the dying declaration. 2[2]Second
most important point to be considered is that it should not be under the
influence of any body or prepared by prompting, tutoring or imagination.
Even if any one of these points is proved then dying declaration is not
considered valid. If it becomes suspicious then it will need corroboration. If a
person has 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
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declarations are contradictory than these lose value. Best form of dying
declaration is in the form of questions and answers. If it is in the form of
narrations it is still good because nothing is being prompted and every thing
is coming as such from the mind of the person making it. 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 declaration is valid. Whenever this is
being recorded in the form of questions and answers precaution should be
taken that exactly what questions are asked and what answers are given by
the patient those should be written. It is preferred that it should be written in
the vernacular which the patient understands and speaks. It is best that it is
recorded by the magistrate but if there is no time to call the magistrate due
to the deteriorating condition of the victim it can be recorded by anybody
e.g. public servant like doctor or any other person. Courts discourage the
recording of dying declaration by the police officers but if there is no body
else to record it dying declarations written by the police officers are also
considered by the courts. If these are not recorded by the magistrate it is
better that signatures of the witnesses are taken who are present at the time
of recording it. In burn cases usually it is debated the person is not capable
of making dying declaration due to the effect of burns or due to the narcotic
sedation given to treat burns. But Gupta and Jani have opined that neither
effect due to burns nor the drugs used to treat burns victims conventionally
affects the higher functions. Therefore they safely concluded that compos
mentis is not affected either by burns or by its treatment 3[3]. If the person
making it is imbecile or is of tender age and was incompetent to testify due
to this reason, that dying declaration would not be valid 4[4] As a measure of
safety original dying declaration should be sent to the court like FIR and its
Photostat should be kept in the case file5[5]. It does not matter that the
person has put a thumb impression or signed it if this is duly witnessed. But
in the court question does arise if a person who can sign puts a thumb
impression. If a literate person putting the thumb impression is in such a
condition that he cannot sign e.g. he was lying in the bed and could not get
up to sign it or it was inconvenient for him to put thumb impression due to
his condition (intravenous drip on the back of hand) or injury e.g. injury on
the right hand in a right handed person. In the absence of such conditions if
there is thumb impression and this is not witnessed by disinterested persons
a doubt may be created whether this was done after the person died to take
revenge by some interested person. There is usually no time limit that dying
declaration becomes invalid if the person died after many months after
making the declaration. Cases are on record when it was considered valid
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4
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after 4 months. Even the HISTORY given by the injured recorded by the
doctor in the case file has been considered as dying declaration by the
honorable Court if it is mentioned that the patient told in the history that
incident occurred in such and such manner which was responsible for the
death of the victim6[6]. Hence it is important that if such history is written as
narrated by the victim it should be recorded carefully, keeping in mind the
mentioned finding of the court. First information report got recorded by the
police has been taken as dying declaration by the Honorable Supreme Court,
when the person did not survive to get his dying declaration recorded 7[7].
But when patient remained admitted in hospital for sufficient days i.e. for 8
days FIR cannot be treated as dying declaration 8[8]. 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 Act9[9].
CASE LAWS:
Paras yadav and others Vs. State of Bihar10[1]
Facts
Accused Paras Yadav and two others assaulted Sambhu Yadav at about 8.00
p.m. and gave him Chhura (knife) blow in abdomen. On hulla (noise) being
raised some public persons and Sub-Inspector of Police, SH. Dinanth Singh
reached the spot while he was on patrolling duty. He recorded the fardbeyan
under section 307 IPC., The victim was shifted to hospital where he
succumbed to the injuries at night of 8th February, 1983. The Sessions Court
convicted the accused by relying on fardbeyan (Ext. 1) which was treated as
dying declaration by the Learned Addl Sessions Judge. After appreciating the
entire evidence on record the High Court has upheld the conviction of the
appellants. Hence, this appeal by special leave is preferred.
Held
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7
8
9
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In out view, there is no reason to disbelieve the oral dying declaration and
deposed by number of witnesses and as recorded in fardbeyan of deceased
Sambhu Yadav. The fardbeyan was recorded by the Police Sub-Inspector on
the scene of occurrence itself, within few minutes of the occurrence of the
incident. Witnesses also rushed to the scene of offence after haring hulla
gulla. The medical evidence as deposed by PW-II also corroborates the
prosecution version. Hence, the Courts below have rightly convicted Paras
Yadav for the offence punishable under section 302 IPC.
Gulam Hussain Vs State of Delhi11[2]
Facts
In the instant case the Dying Declaration Exhibit PW 22/B was recorded by
PW 22 ASI Balwan Singh in the hospital on 14-10-1989 at about 6.30 a.m.
after getting an opinion from the Doctor that the injured was fit for
statement. The endorsement of the doctor is recorded as Exhibit PW 22/A.
Legal Issue: Learned counsel appearing for the appellants submitted that
as the statement was recovered by the investigating officer, which was
treated as FIR, the same could not be treated as dying declaration and was
inadmissible in evidence.
Held
The submission has no substance because at the time of recording the
statement PW 22 Balwan Singh did not possess the capacity of an
investigating officer as the investigation had not commenced by then. Such
a statement can be treated as a dying declaration, which is admissible in
evidence under section 32 (1) of the Evidence Act. After critically scanning
the statement of PW 22 ASI Balwan Singh and details of Exhibit PW 22.B, we
have no hesitation to hold that the aforesaid statement was voluntarily made
by the deceased which was reduced to writing and have rightly been treated
as dying declaration after the death of the marker.

11

Hence, as a rule of law or prudence there is no requirement as to

corroboration of the dying declaration before it is acted upon. The basis for
its admissibility is the conviction of the court that it is true. The court may
look for the corroboration of a dying declaration if the circumstances under
which it is made happen to be vague. The element of vagueness could crop
up due to several reasons, namely, the inability of the dying man to perceive
things properly due to pain or injury inflicted upon him or due to dwindling
vision when he is on the verge of death. Another important factor that forms
basis of the admissibility of a dying declaration is the morality or religious
condition of the dying man, Truth sits on the lips of a dying man who has a
sense of impending death. But if the dying man was under no expectation of
death, could it be presumed that even then his religious or moral fiber would
get strengthened impelling him to speak the truth. We strongly feel that it is
not always the case. Truth would sit on the lips of a dying man only if he is
under expectation of death. The Indian law does not insist on the element of
expectation of death while the English law does. We feel that Section 32 (1)
be amended so as to include the word "expectation of death' to make its
admissibility more in consonance with the reasons for which it has been
enshrined in the Indian Evidence Act.

A Dying Declaration means the statement of a person who has died

explaining the circumstances of his death. It can be said to be a statement
made by a mortally injured person, indicating who has injured them and/or
the circumstances surrounding their injury. The injured is aware that he/she
is about to die and while the declaration is hearsay, it is admissible since it is
believed that the dying person does not have any reason to lie.
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 a 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"
Sub-section (1) of Section 32 of the Evidence Act, any statement, written or
verbal, of relevant facts made by a person who is dead, or who cannot be
found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the Court
unreasonable, would constitute relevant facts. If as a result thereof, the
Court is satisfied that the statement made by a person who is now dead is
relevant, the same becomes admissible in terms of Sub-section, (1) of
Section 32 of the Evidence Act.

Admissible
It is not always necessary that a dying declaration should be certified by a
doctor before reliance could be placed on the same. But then in the absence
of any such certificate, the Courts should be satisfied that from the material
on record it is safe to place reliance on such uncertified declaration.
The basic infirmity committed by the High Court is in assuming that for a
dying declaration to be admissible in evidence, it is necessary that the maker

of the statement, at the time of making statement, should be under the

shadow of death. That is not what Section 32 of the Indian Evidence act says.
That is not the law in India. Under Indian law, for dying declaration to be
admissible in evidence, it is not necessary that the maker of the statement
at the time of making the statement should be under shadow of death and
should entertain the belief that his death was imminent. The expectation of
imminent death is not the requirement of law.
Unless the statement of a dead person would fall within the preview of
Section 32(1) of the Indian Evidence Act, there is no other provision under
which the same can be admitted in evidence. In order to make the statement
of a dead person admissible (written or oral), the statement must be as to
the cause of her death or as to any of the circumstance of the transactions
which resulted in her death, in cases in which the cause of death comes into
question.
Evidential value of the writings contained in diary of deceased-wife is that of
a dying declaration. On the principle underlying admissibility of dying
declaration in evidence that truth sits on the lips of a dying person and the
Court can convict an accused on the basis of such declaration where it
inspires full confidence, there is no reason why the same principle should not
be applied when such a dying declaration speaking of the cause of the death
exonerates the accused unless there is material available to form an opinion
that the deceased while making such statement was trying to conceal the
truth either having been persuaded to do so or because of sentiments for her
husband.
There is no format as such of dying declaration neither the declaration need
to be of any longish nature or neatly structured. As a matter of fact, perfect
wording and neatly structured dying declaration bring about an adverse
impression and create a suspicion in the mind of the Court since dying
declarations need not be drawn with mathematical precision. The declarant
should be able to recollect the situation resulting in the available state of
affairs.
Accomplice
Dying Declaration cannot be equated with the evidence of an accomplice or
the evidence furnished by a confession as against the maker.
Abrupt Ending/ Incomplete
When the dying declaration abruptly ends, due to deteriorating condition of
the patient then this cannot affect the evidentiary value of the dying
declaration since it is complete in so far as the appellants role is concerned.
Before Police

Better and more reliable methods of recording a dying declaration of an

injured person should be taken recourse to and the one recorded by the
Police Officer may be relied upon if there was no time or facility available to
the prosecution for adopting a better method.
The practice of Investigating Officer himself recording the dying declaration
during the course of investigation ought not to be encouraged and it would
be better to have dying declaration recorded by magistrate. But no hard and
fast rule can be laid down in this regard. It all depends upon the facts and
circumstances of the case.
Before Magistrate
There is no requirement of law that a dying declaration must necessarily be
made to a Magistrate and when it is recorded by a magistrate, there is no
statutory form for such recording. The evidentiary value depends on facts
and circumstances of each particular case. The person who records a dying
declaration must be satisfied that the deceased was in a fit state of mind. A
certification of doctor is essentially a rule of caution and, therefore, the
voluntary and truthful nature of the declaration can be established
otherwise. This is a well settled rule now, by this Constitution Bench
judgment of the Supreme Court.
Section 32 of the Indian Evidence Act nowhere states that the dying
declaration must be recorded in the presence of a Magistrate or in other
words no statement which has not been recorded before the Magistrate
cannot be treated to be a dying declaration.
Condition of Patient
A dying declaration must be closely scrutinized as to its truthfulness like any
other important piece of evidence in the light of the surrounding facts and
circumstances of the case, bearing in mind, on one hand, that the statement
is by a person who has not been examined in Court on oath and, on the other
hand, that the dying man is normally not likely to implicate innocent persons
falsely. When the dying declaration is recorded, the person who records the
statement is consciously making the statement understanding the
implications of the words he uses and the responsibility of the Court is
greater in holding that it was so made when in fact it is found that the man
dies a few minutes afterwards.
Where the medical testimony is clear that the deceased could not make the
statement (dying declaration) after the receipt of injuries, the ocular version
be disbelieved.
Corroboration
It is well settled that dying declarations shall have to be dealt with due care
and upon proper circumspection. Though corroboration thereof not essential

as such, but its introduction is otherwise expedient to strengthen the

evidential value of the declaration. Independent witnesses may not be
available but there should be proper care and caution in the matter of
acceptance of the dying declaration as a trustworthy piece of evidence.
It is rarely found in a criminal case that the description of the incident and
injury described in the dying declaration gets full corroboration from the
medical evidence contained in the injury report and the post-mortem report.
In such cases, still the dying declaration can be relied upon.
Once the Court is satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any further corroboration. It
cannot be laid down as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.
Declarant Survives
It is trite law that when the maker of a purported dying declaration survives,
the same is not statement u/s 32 of the Indian Evidence Act but is a
statement in terms of Section 164 of the Cr.P.Code. It can be used under
section 157 of the evidence Act for the purpose of corroboration and under
Section 155 of the evidence Act for the purpose of contradiction.
English Law vis-a vis Indian Law
There is a distinction between the evaluation of a dying declaration under
the English Law and that under the Indian Law. Under the English Law,
credence and the relevancy of a dying Declaration is only where a person
making such a statement is in a hopeless condition and is expecting
imminent death. So under the English Law, for its admissibility, the declarant
should have been in actual danger of death at the time when they are made,
and that he should have had a full apprehension of this danger and the death
should have ensued.
Under the Indian Law, the dying declaration is relevant whether the person
who makes it was or was not under expectation of death at the time of
declaration. Dying declaration is admissible not only in the case of homicide
but also in civil suits. Under the English Law, the admissibility rests on the
principle that a sense of impending death produces in a mans mind the
same feeling as that of a conscientious and a virtuous man under oath. The
general principle on which this species of evidence are 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 is induced by the most powerful considerations to
speak only the truth. If evidence in a case reveals that the declarant has
reached this state while making a declaration then within the sphere of
Indian Law, while testing the credibility of such dying declaration, weightage

can be given, of course, depending on the other relevant facts and

circumstances of the case.
Infirmities
Where the testimony of the eye-witness is inconsistent with the medical
evidence, it is unsafe to rely upon such dying declaration as when the dying
declaration according to the prosecution has been made at two different
places but from the doctors evidence it is found that it was improbable that
the deceased would have been in a position to walk or to speak, the dying
declaration be disregarded.
Mere non-mention of the names of certain eye-witnesses in dying declaration
will not diminish the value of their testimony.
When there are serious discrepancies in the account given by the witnesses,
it is unsafe to place reliance on the dying declaration.
If the evidence of eye-witnesses was to be rejected on the ground that it was
inconsistent with the dying declaration then it would, in the circumstances
not necessarily follow that the dying declaration was also unreliable and
unworthy of credence.
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 be 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 of conviction.
Necessity
A dying declaration is admissible in evidence on the principle of necessity
and can form the basis of conviction if it is found to be reliable. While it is in
the nature of an exception to the general rule of forbidding hearsay
evidence, it is admitted on the premises that ordinarily a dying person will
not falsely implicate an innocent person in the commission of a serious
crime. If, in the facts and circumstances of the case, it is found that the
maker of the statement was in a fit state of mind and had voluntarily made
the statement on the basis of personal knowledge without being influenced
by others and the court on strict scrutiny finds it to be reliable, there is no
rule of law or even of prudence that such a reliable piece of evidence cannot
be acted upon unless it is corroborated.
Oath
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 is induced by the most powerful

considerations to speak the truth; a situation so solemn and so lawful 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.
Oral Dying Declaration
It can be relied upon. When the doctor was available there was no
justification for the Police officer to record the dying declaration.
Test of Reliability
Though in law there is no bar in acting on a part of the dying declaration, it
has to pass the test of reliability. Section 32(1) of the Indian Evidence Act is
an exception to the general rule that hearsay evidence is not admissible
evidence and unless evidence is tested by cross examination it is not
creditworthy. A dying declaration made by a person on the verge of his death
has a special sanctity as that solemn moment a person is most unlikely to
make any untrue statement. The shadow of impending death is by itself
guarantee of the truth of the statement of the deceased regarding
circumstances leading to his death. But at the same time the dying
declaration like any other evidence has to be tested on the touchstone of
credibility to be acceptable. It is more so, as the accused does not get an
opportunity of questioning veracity of the statement by cross examination.
The dying declaration if found reliable can form the basis of conviction.
Two Dying Declarations
When there are two dying declarations and there was inconsistency between
them and there was no other evidence evidence to prove the prosecution
case, it was not safe to act solely on the said declarations to convict the
accused persons.
Conclusion
A statement, written or oral, made by a person who is dead as to the cause
of his death or as to any of the circumstances of the transaction which
resulted in his death, in case in which the cause of that person's death
comes into question, becomes admissible under section 32 of the Evidence
Act. Such statement made by the deceased is commonly termed as dying
declaration. There is no requirement of law that such a statement must
necessarily be made to a Magistrate. What evidentiary value or weight has to
be attached to such statement must necessarily depend on the facts and
circumstances of each particular case. In a proper case, it may be
permissible to convict a person only on the basis of a dying declaration in the
light of the facts and circumstances of the case.

"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. , (1993) 2 SCC
684) and reiterated in Laxmi v. Omprakash (AIR 2001 SC 2383. ) 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 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.
1.3 Dictionary Meaning of Dying Declaration

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.
1.3 Meaning given by Law Lexicons
Whartons Law Lexicon, quoting from R v. Perry (1909)2 K.B. 697 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.'
Blacks Law Dictionary defines dying declaration as follows: 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
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.
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.
1.5 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 Act. 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
Indian Evidence Act, 1872; though not as dying declaration as such, provided
it satisfies one of the two conditions set forth in section 32(1) of the Act.
The phrase 'dying declaration' is not used in s 32 of the Indian Evidence 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.
The admissibility is founded on principle of necessity.
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 crossexamination 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 circumstances. [See
Tapinder Singh v. State of Punjab 1971 (1) SCJ 871] 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 Rajasthan - AIR 1957 SC 589] 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 dyingdeclaration by itself insufficient for sustaining a (SIC)con charge of murder. In
Kako Singh @ Surendra Singh Vs State of M.P. -AIR 1982 SC 1021 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 coherent statement. In Darshan Singh Vs. State of
Punjab - AIR 1983 SC 554 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 - AIR 1981 SC 1571 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.
30. 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 mMunnu Raja and Anr. Vs. The
State of Madhya Pradesh - AIR 1976 SC 2199, 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 AIR 1979 SC 1173 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 declaration yet the dying
declaration was left out of consideration as it contained a statement which
was a bit doubtful.
CHAPTER 02
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" [R v. Abbot, 67 JP 151]
but "I am dying, look to my children", was held sufficient [R v. Goddard, 15
Cox 7],
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.
2.1 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. [Poolakkal Klinchli v
State 1986(2) Crimes 225 (Ker) (DB)] 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 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
declaration, [Mati Singh v State AIR 1964 SC 900] though 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.
2.2 SUMMARY:
(1) 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 up [Tehal v. S, AIR 1979 SC1347]. . 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.
1. 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?
2. 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 rape [R
v. New
ton, 1 F & F 641], or robbery [R v. Lloyd, 4 C & P 233]. 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.
3. 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 intoquestion." Thus in a suit for damages for death caused by a
railway accident due tothe 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 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 cross-examination. 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
Estoppel' in its broadest sense is a legal term referring to a series of legal
and equitable doctrines that preclude "a person from denying or asserting
anything to the contrary of that which has, in contemplation of law, been
established as the truth, either by the acts of judicial or legislative officers, or
by his own deed, acts, or representations, either express or implied." [1]
This term appears to come from the Old French estoupail (or a variation),
which meant "stopper plug", referring to placing a halt on the imbalance of
the situation. The term is related to the verb "estop" which comes from the
Old French term estopper, meaning "stop up, impede."