Exception to Hearsay Rule: Dying Declaration

-Shubhangi Baranwal

Introduction
Section 32 (1) of Indian Evidence Act, 1872 makes relevant and admissible evidence a Dying
Declaration i.e., a statement made by a person who is dead and statement relates to cause of a
death or to the circumstances of transaction resulting in his death.

Dying Declaration is an exception to Hearsay Rule of Evidence. As a general rule hearsay

evidence is excluded and the best evidence is given in every case [Myers v DPP]1. Section 60 of
Indian Evidence Act, 1872 also declares that evidence in all cases must be direct. However,
Dying Declaration creates an exception to this rule and the objective behind making Dying
Declaration relevant in spite of it being a hearsay , can be found in the maxims – “NEMO
MORITRUS PROESUMITUR MENTICE” which means that a person will not meet his
maker without a lie in his mouth.

Dying Declaration is permissible on the principle of necessity as the person whose statement is
offered is either dead or not available and no better evidence can be had.

The general principle on which this species of evidence is admissible is that these are
declaration made in extremity, when the party is at the point of death, when every hope of this
world is gone, when motive to falsehood is silenced and the mind is induced by the most
powerful consideration to speak the truth [R v Woodcock]2

1
[1965] AC 1001
2
[1787] 1 Leach
In the above case it was observed that ‘it is situation so solemn considered by the law , as
creating an obligation equal to that which is imposed an obligation equal to that which is
imposed by an oath administered in a court of justice’.

Essential element for invoking Sec.32 (1)

 There should be a statement oral/written of a person who is dead.
 The statement have been made as to cause of his death or as to any circumstances of the
transaction which resulted in his death
 The cause of that person death must be in question i.e., it must be in fact in issue.
 It is not necessary that when the statement were made the person was or wasn’t under an
expectation of death what matters is that the person making the statement must eventually
die.
 Dying Declaration will be relevant whatever may be the nature of proceeding i.e., under
section32 (1) in civil as well as criminal proceedings

The testimony of an ordinary witness is an admissible as evidence only when other party is given
the opportunities to cross examine such witness. This opportunity of cross examination is not
possible under section 32(1) because the person making the statement is dead

However, by virtue of sec 158 IEA the statement can be contradicted or the credibility of the
maker of the statement can be impeached in the same manner as that of an ordinary witness

A statement would be relevant under sec. 32(1) only when the death of a person making
statement is proved. This is provided under section 136 IEA which state that if the fact
proposed to be true is one of which evidence is admissible only upon proof of some other fact.
Such last mentioned fact must be proved before evidence is given of the fact first mentioned.
This implies if Dying Declaration has to be proved then party proving Dying Declaration will
have to first prove the death of a person. Death has to be proved and even be presumed under
section 107 & 108 IEA.

Corroboration of Dying Declaration

The S.C in Atbir v. Govt. (NCT of Delhi)3 has summed up the legal proceedings governing dying
declaration.

 The dying declaration can be sole basis of conviction if it inspires full confidence of the
court.
 The court should be satisfy that the deceased was in a fit state of mind at the time of making
the statement and it was not the result of tutoring, prompting or imagination.

3
(2010) 9 SCC 1
 When the court is satisfied that the declaration is true and voluntary it can base its
conviction without any further corroboration.
 It can be laid down an absolute rule of law that Dying Declaration cannot firm the sole basis
of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of
prudence.
 Merely because a Dying Declaration doesn’t contain all the details as to the accordance it is
not rejected.
 If after careful scrutiny the court is satisfied that it is true and free from any error and
coherent as well as consistent. There shall be no legal impediment to make it the basis of
conviction even if there is no corroboration.

Difference between English Law & Indian Law in Dying Declaration