(2018) 2 SCC Cri J-22 A 

Do Dying Lips Always Speak the Truth?

Admissibility of Dying Declaration in Case
of Suicide
by

M.R. Sreenivasa Murthy† and K. Syamala††

Suicide is part murder, revenge on those who hurt you,

just as murder is part suicide, for a murderer knows he risks
losing his life

— Lucy Freeman

 1. Introduction

According to World Health Organisation, suicide is the 15th

leading cause of death, killing more than 8,00,000 people
each year.1 According to National Crime Records Bureau
report on “Accidental Deaths and Suicides in India”, 1,33,623
suicide cases have been reported in the year 2015. As per
NCRB, 27.6% of suicides are due to family problems; 4.8%
marriage related issues; 3.3% love affairs; 15.8% illness;
3.3% bankruptcy or indebtedness; 2.7% drug abuse/addiction;
2% unemployment; 2% failure in examination; 12.1% causes
unknown and 26.2% other causes.2
  Is it for catharsis; or catharsis of a newly-wed from the
complexities of new family relationships; or is it the frustration
of an adolescent student who is unable to cope up with the
pressure to perform in the competitive world; or is it the failure
of the governmental policies driving farmers to commit suicide
or something else? Answer can be varied, but the pattern of
suicides reflects a deeper malice. Every suicide has a story to
tell with all pain and psychological disturbance which compel
the victim to take the fatal decision to end up his life—the
most valued one on planet earth.

 Each suicide is a personal catastrophe wherein a

person impetuously gives up his life under the influence of
anguish, fear, depression or frustration. Suicide notes are
admitted under Section 32(1) of the Evidence Act, 1872
as dying declarations.3 The suicide cases filed under Sections
306, 498-A, 107, etc. of the Penal Code, 1860 read with
Section 113-A of the Evidence Act, 1872, await

   Page: J-23

admissibility of the dying declaration/suicide note, if any, given

by the deceased for further prosecution of the case against
the accused.
  The admissibility of dying declaration under Section
32(1) of the Evidence Act, 1872 necessarily relies upon the
mental and physical fitness of the
declarant.4 In Laxman v. State of Maharashtra5 the Supreme
Court held that the absence of certification of the doctor about
the mental fitness of the declarant at the time
of declaration would not render
the dying declaration unacceptable. With reference to suicide
notes under Section 32(1) of the Evidence Act, 1872, the
possibility of finding out the victim's physical and mental state
of mind is rather difficult because the statement is deposed by
the person in isolation.

 Question arises whether suicide notes always state the

true facts when prepared in suicidal trance? The Hon'ble
Supreme Court of Louisiana, in Garza v. Delta Tau Delta
Fraternity National6 observed that:

the classic dying declaration is made by a person near

death from fatal wounds or illness, who makes a statement
to a third party about who inflicted the wounds or caused
the illness…. In contrast, a suicide note is a deliberate
communication composed in advance of the act itself. The
writer intends for the note to be found and read….
Therefore, the writer may carefully and methodologically
 select the words used. Specifically, the author has the
opportunity to tell something or omit others, to accuse or
exonerate, to clarify and confound or even to seek revenge
against someone who is blameless.

 Another question is, “whether suicide note can be

admissible evidence under Section 32(1) of the Evidence Act,
1872, wherein the author of the suicide note has not been
testified for mental/physical fitness at the time of drafting the
same?”. Whether applying a similar test to the homicidal
deaths and suicidal deaths will result into travesty of justice?

 2. Understanding dying declaration in general

Dying declarations are accepted as an exception to

traditional hearsay evidence. Generally hearsay evidence, not
being direct evidence, is not admissible in the court of law. In
a dying declaration, a dying person states about the cause of
his sudden unnatural death. The last words uttered by
the dying person about his death have been admitted to be
relevant evidence, though the same cannot be cross-
examined. This exception to the hearsay rule is to respect the
urge of the dying person to get justice by being witness in his
own trial even after his death.
  Dying declaration is based on the maxim “nemo
moriturus praesumitur mentire” which means “man will not
meet his maker with a lie in his mouth”.7 The principle is
based on the theory that a dying man may not speak untruth.
The fear of God, where one would face the eternal trial for the
deeds committed on earth, never allows a man on his
deathbed to speak a lie. The assumption of

   Page: J-24

truth in the leterm mortem i.e. words said before death,

though had its roots in religious and moral institutions, the
adoption of the same by the legal institutions raised criticism.
The principles of evidence universally accepted the relevancy
of dying declaration as admissible.

 In many instances, the divine retribution rationale

underlying the acceptance of the reliability
of dying declarations has been severely
criticised.8 In People v. Bartelini9, the Court held that:

if we look for the basis upon which rests this exception,

we find it in the assumption, born of experience, that the
approach of death produces a state of mind in which the
utterances of the dying person are to be taken as a free of
 ordinary motives to mis-state…. The fact that the exception
has as its basis only the assumption mentioned above….
Means that extreme caution is required of the trial court
before a dying declaration is received in evidence.

 In R. v. Woodcock10, the Court held that:

the general principle on which this species of evidence is

admitted is, that they are declarations made in extremity,
when the party is at the point of death, and when every
hope of this world is gone; when every motive is falsehood
is silenced, and the mind is 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 same is also supported by religious institutions as

the truth comes out when one is sure about his final journey to
the eternal world. It provides a fair hearing to the key witness,
who is also the victim and cannot be cross-examined.

 3. Suicide notes and dying declarations — relevant

provisions in India
 Section 32(1) of the Evidence Act, 1872 states that “the
statement is made by a person as to the cause of his death,
or as to any of the circumstances of the transaction which
resulted in his death…”. The dying declarations, in cases of
homicide, give the victim last opportunity to speak about his
assassin and bring him to justice. Being the direct evidence in
his own case, under the belief of impending death,
the dying person is presumed to be speaking the truth.

 In India, a suicide note which is in the nature

of dying declaration is admissible under Section 32(1) of the
Evidence Act, 1872. In Sharad Birdhichand Sarda v. State of
Maharashtra11, the Hon'ble Supreme Court of India held that:

18. … the Indian law on the question of the nature and

scope of dying declaration has made a distinct departure
from the English law where only the statements which
directly relate to the cause of death are admissible. The
second part of Section 32(1) viz. “the circumstances of the
transaction which resulted in his death, in cases in which
the cause of that person's death comes into question” is not
to be found in the English law.

***
    Page: J-25

21. … from a review of [various authorities of the courts]

and the clear language of Section 32(1) of the Evidence
Act, the following propositions emerge:

(1) Section 32 is an exception to the rule of hearsay

and makes admissible the statement of a person who
dies, whether the death is homicide or a suicide,
provided the statement relates to the cause of death, or
[relates to] circumstances leading to the death. In this
respect … Indian Evidence Act, in view of the peculiar
conditions of our society and the diverse nature and
character of our people, has thought it necessary to
widen the sphere of Section 32 to avoid injustice.

***

(4) … Section 32 does not speak of homicide alone

but includes suicide also, hence all the circumstances
which may be relevant to prove a case of homicide would
be equally relevant to prove a case of suicide.12

According to Section 306 IPC:

306. Abetment of suicide.—If any person commits

suicide, whoever abets the commission of such suicide,
 shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also
be liable to fine.

 The charges under Section 306 IPC will be attracted

against the accused whose name is mentioned in the suicide
note. In Mangat Ram v. State of Haryana13, the Hon'ble
Supreme Court of India stated that, “it is worth reading of
Section 306 read with Section 107 IPC, in order to make out
the offence of abetment required is that the culprit is either
instigating the victim to commit suicide or has engaged
himself for the commission of suicide, or has intentionally
aided by an act or illegal omission in the commission of
suicide”.

 In case of marital suicide, Section 498-A/304-B of the

Penal Code will be applicable. As per Section 498-A IPC:

498-A. Husband or relative of husband of a woman

subjecting her to cruelty.—Whoever, being the husband or
the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be
liable to fine.
  Explanation.—For the purpose of this section, “cruelty”
means—

(a) any wilful conduct which is of such a nature as is likely

to drive the woman to commit suicide….

 According to Section 304-B IPC:

304-B. Dowry death.—(1) Where the death of a woman

is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she
was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called “dowry
death”, and such husband or relative shall be deemed to
have caused her death.

   Page: J-26

 Further, Section 113-A of the Evidence Act, 1872 lays

that:
 113-A. Presumption as to abetment of suicide by a
married woman.—When the question is whether the
commission of suicide by a woman had been abetted by
her husband or any relative of her husband and it is shown
that she had committed suicide within a period of seven
years from the date of her marriage and that her husband
or such relative of her husband had subjected her to
cruelty, the court may presume, having regard to all the
other circumstances of the case, that such suicide had
been abetted by her husband or by such relative of her
husband.

Explanation.—For the purpose of this section, “cruelty”

shall have the same meaning as in Section 498-A of the
Penal Code, 1860.

 4. Relevancy of state of mind of the deceased while

admitting suicide note as dying declaration

The mental and physical fitness of the declarant plays a

crucial role in the admissibility of dying declaration.
In Khushal Rao v. State of Bombay14, the Supreme Court of
India ruled that dying declaration could form the sole basis of
conviction, provided the mental capacity of the declarant at
the time of declaration and the corroboration of circumstantial
evidence with the statement has been cautiously scrutinised
before decision-making.

 In Paniben v. State of Gujarat15 the Supreme Court of

India in particular reference to psychological status or mental
capacity of the deceased, held that:

18. … (iii) This Court has to scrutinise

the dying declaration carefully and must ensure that
the declaration is not the result of tutoring, prompting or
imagination. The deceased had opportunity to observe and
identify the assailants and was in a fit state to make the
declaration.16

***

(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 eyewitness has said that the deceased was in a
fit and conscious state to make this dying declaration, the
medical opinion cannot prevail.17,18

 The Law Commission of India in its 185th Report

mentioned that, “it is however been accepted in India, that
there is a tendency among persons dying to implicate all their
enemies who may have had nothing to do with the offence”.
  In V. Venkataraman v. State19, the High Court of
Chennai held that:

32. 9. If a lover commits suicide due to love failure, if a

student commits suicide because of his poor performance
in the examination, a client commits suicide because his
case is dismissed, the lady, examiner, lawyer respectively
cannot be held to have abetted the commission of suicide.
For the wrong decision taken by a coward, fool, idiot, a man
of weak mentality, a man of frail

   Page: J-27

mentality, another person cannot be blamed as having

abetted his committing suicide.20

 It was further held in V. Venkataraman19 that:

32. 47. Sometimes, the decision to commit suicide might

be taken by the victim himself/herself, unaccompanied by
any act or instigation, etc. on the part of the accused. A
person may die like a coward. On his failure in the
examination, a student may commit suicide. They are weak
minded. They are persons of frail mentality. For their foolish
mentality/decision, another person cannot be blamed.
 ***

52. … contents of the suicide note has to be analysed to

find out whether it contains any incriminating information in
the nature of instigation, provocation, forcing the victim to
commit suicide.

53. … handwritings … would not show any abetment on

the part of the accused. … It would not show any intention
or wish on the part of the accused that his wife should die.
It would not show any positive act on the part of the
accused forcing her to commit suicide.21

 The Hon'ble Supreme Court of India in State of

W.B. v. Orilal Jaiswal22 stated that:

17. … If it transpires to the Court that a victim committing

suicide was hypersensitive to ordinary petulance, discord
and differences in domestic life quite common to the society
to which the victim belonged and such petulance, discord
and differences were not expected to induce a similarly
circumstanced individual in a given society to commit
suicide, the conscience of the Court should not be satisfied
for basing a finding that the accused charged of abetting
the offence of suicide should be found guilty.23
  In Ramesh Kumar v. State of Chhattisgarh24, acquitting
the accused, this Court said:

A word uttered in a fit of anger or emotion without

intending the consequences to actually follow cannot be
said to be instigation. If it transpires to the court that a
victim committing suicide was hypersensitive to ordinary
petulance, discord and differences in domestic life quite
common to the society to which the victim belonged and
such petulance, discord and differences, were not expected
to induce a similarly circumstanced individual in a given
society to commit suicide, the conscience of the court
should not be satisfied for basing a finding that the accused
charged of abetting the offence of suicide should be found
guilty.25

   Page: J-28

 5. Admissibility of suicide note

as dying declaration vis-à-vis theory of revenge

Suicide is defined to be “the action of killing oneself

intentionally”. While analysing the relation of suicide notes/or
statements made by the person who committed suicide with
the dying declaration doctrine what is the mental state of mind
of the person committing suicide is the question which comes
to mind. Suicide and suicidal behaviours are said to be
caused by depression, fear of social problems/challenges,
bipolar disorder, stress-related economic, social or other
aspects of life, etc.26 The Law Commission of India in its 210th
Report on “Humanisation and Decriminalisation of Attempt to
Suicide”, stated that attempt to suicide may be regarded more
as a manifestation of a diseased condition of mind deserving
treatment and care….

 In Sharad Birdhichand Sarda v. State of Maharashtra13,

while referring to the book, Death, Society and Human
Experience of the eminent psychiatrist, Robert, J.
Kastenbaum who analysed the causes, the circumstances,
the moods and emotions which may drive a person to commit
suicide, the Supreme Court observed that:

40. The fact is that some people who commit suicide can
be classified as psychotic or severely disturbed. (p. 242)

***

Revenge, fantasies and their association with suicide are

well known to people who give ear to those in emotional
distress. (p. 251)
 ***

People who attempt suicide for reasons other than

revenge may also act on the assumption that, in a sense,
they will survive the death to benefit by its effect.

***

The victim of suicide may also be the victim of self-

expectations that have not been fulfilled. The sense of
disappointment and frustration may have much in common
with that experienced by the person who seeks revenge
through suicide….27

 The state of mind of a person committing suicide

includes severe depression, confusion, emotional stress, etc.
In Nelson v. Seaboard Coast28, evidence has been presented
that the descendent's suicide may have been the result of
work-related stress caused by the employer's negligence. The
Court stated that where a negligent wrong causes a mental
condition in which the injured person is able to realise the
nature of the act of suicide, the thought process of the injured
becomes an independent intervening force and the wrongdoer
cannot be held liable for the death. However, if the negligent
wrong causes mental illness that results in an uncontrollable
impulse to commit suicide, the wrongdoer may be held liable
for the death. In this case, the Court ruled that the
descendant's suicide note was admissible in order to
determine whether the descendant was able to realise the
nature of the act of suicide or whether the descendant's
actions of taking his life were of an uncontrollable impulse.
Furthermore, the Court stated that the suicide note was not
only necessary, but the most important piece

   Page: J-29

of physical evidence in relation to the descendant's state of

mind prior to his death.29

 In recent times, the courts have recognised that suicide

is an independent agency that breaks the chain of
causation.30 In Garza v. Delta Tau Delta Fraternity National
ABC31, the sole question dealt by the Louisiana Supreme
Court was whether the suicide note in question was
admissible as an exception to the hearsay rule? The Court in
this case noted that the self-serving motivation of one who
writes a suicide note deprives the note of reliability. The Court
while applying the test of “existing mental, emotional or
physical condition”, relied upon the following three reasons for
not admitting the suicide note under the hearsay state of mind
exception:
 (1) the declarant did not speak of present state of mind but
of past state of mind;

(2) the declarant accused others of wrongdoing, which

exceeded the statutory limit that the declaration be
offered to prove the declarant's future actions; and

(3) the declarant related memories and beliefs, thus not

admissible to prove the facts remembered and believed.

 The declarant's subjective belief in the impending

nature of death is what is considered to assure the truth of his
statement of the objective facts about the person, motive, or
mechanism which made up the cause or circumstances of the
impending death.32 In Mattox33, it was held that the very nature
of death by hanging prevents the application of this test in
determining the admissibility of suicide note, as there is no
physical injury or impairment at the time the declaration is
made. Thus, a caveat from over a century ago is particularly
pertinent: a dying declaration “must be received with the
utmost caution, and if the circumstances do not satisfactorily
disclose that the awful and solemn situation in which
declarant is placed is realised” by the declarant, the evidence
ought to be rejected.
  In the dissenting judgment in State v. Satterfield34, it was
held that:

the control of the declarant over her fate distinguishes a

suicide note from the true dying declaration, which the
courts have elevated to the level of sworn testimony in the
eye of the law. Because a suicide note is a planned
statement made in anticipation of a controlled act, it is not
analogous to a dying declaration made under the belief of
impending death by a person with a total lack of control
over the timing and causation of death.

   Page: J-30

 A person intent on committing suicide retains the ability

to draft a statement to her liking, defeating the assumed
truthfulness the law attributes to true dying declarations when
all cause for untruthfulness is presumed to have been
eliminated by impending death. The motivation of one
penning a suicide note differs from the motivation of someone
unexpectedly facing imminent death.
  In State v. Hodge35, it was held that:

 The writer of a suicide note might have a motive to

implicate another other than the truth… A declarant who has
decided to commit suicide would have no fear, perhaps other
than religious convictions… of punishment for… the falsity of
the note.

 Referring to the difference between the situations of

culpable homicide and suicide from the angle
of dying declaration, the Garza31 court observed that in
general, the mortal wound/fatal injury is absent at the time of
drafting suicide note. Absent a mortal wound at the time of the
statement, the statement lacked the “circumstantial probability
of trustworthiness” required for admission as
a dying declaration.

 6. Conclusion

A person commits suicide not to cause pain to oneself, but

to others. It may be assumed that the act of suicide is a silent
response to the pain caused to them by the society/any
individual. The pain suffered may be real or illusion of the
victim, but presence of a villain is always observed in suicidal
cases. When the victim names the accused in the suicide
note, the onus is on him/her to prove the case under Section
32(1) of the Evidence Act, 1872.

 In suicide cases, where the death is designed by the

deceased, the possibility of pre-planned psychological make-
up behind drafting of suicide note cannot be overruled and at
the same time, the moral wound/physical injury suffered by
the deceased, reflected in the suicide note, cannot be
ignored. In dissenting judgment, Jhonson, J., in Garza31 held
that “rape (the cause for suicide in Garza case) was the type
of wound inflicted… such that… must have felt or know that
she could not survive….” According to Jhonson, J.,
(dissenting Judge) in Garza31, while dealing with the
admissibility of the suicide notes as dying declaration, one
should include psychological pain suffered by the victim apart
from the “moral wound/physical injury” as part of essential
conditions.36

 Suicide may be out of bitterness; or rancor against one

or more individuals or the society as a whole. When the
motive of revenge overpowers the wisdom of the victim, the
reliability of the suicide note comes into question. At the same
time, it is important to remember the fundamental principle
behind admissibility of dying declaration. It is the last chance
for the victim to state the cause of his/her death, who is under
the influence of impending death. Ignoring completely the
suicide notes may also disregard the last wish of the victim
who coveted to attain justice.

   Page: J-31

 Testing the facts and circumstances of homicidal death

and suicidal death on similar lines may result in travesty of
justice. The courts shall intensely scrutinise the psychological
state of mind of the deceased in suicide cases as the drafter
of suicide note has the chance to pre-design the post-suicide
scenario. Another important point to be noted while
scrutinising suicide notes under Section 32(1) of the Evidence
Act, 1872 is the absence of mortal/physical injury at the time
of writing the suicide note. The mental status of the deceased
may be in any tense past, present or future at the time of
belief of impending death.

References

1. Peter Nicloas, “I'm Dying to Tell You What Happened:

The Admissibility of Testimonial Dying Declarations Post-
Crawford”, 37(3) Spring 2010.
2. Timothy J. McNamara, “Dying Declarations in Louisiana
Law”, 22 La L Rev (1962).

3. Aviva A. Orenstein, “Her Last Words: Dying Declarations

and Modern Confrontation Jurisprudence”, (2010)
Articles by Maurer Faculty Paper 6.

4. Liang B.A., “Lies on the Lips: Dying Declarations,

Western Legal Bias, and Unreliability as Reported
Speech”, Law Text Culture 5, 2000.

5. Michael J. Polelle, “Death of Dying Declarations in a

Post-Crawford World, The”, 71 Mo L Rev (2006).

6. Aviva Orenstein, “Her Last Words: Dying Declarations

and Modern Confrontation Jurisprudence”, (2010) 5
University of Illinois Law Review 1411-1460.

7. Robert H. Klugman, “Some Factors Affecting the

Admissibility of Dying Declarations”, 39 J Crim l &
Criminology 646 (1948-1949).

8. “Hearsay in Civil and Criminal Cases”, 2010 Consultation

Paper, Law Reform Commission,
<www.lawreform.ie/_fileupload/hearsayfull.pdf> last
accessed on 5-1-2017.

9. “The Admissibility of Dying Declaration”, 38 Fordham L

Rev 509 (1970).
 ———

 Assistant Professor (Selection Grade), National University of

†

Study and Research in Law, Ranchi.

 Assistant Professor (Selection Grade), National University of

††

Study and Research in Law, Ranchi

 World Health Organisation (2014). “Mental Health-Suicide

1

Prevention”. Geneva, Switzerland. Retrieved 1-8-2014, from

<http:// www.who.int/mental_health/
prevention/suicide/suicideprevent/en/>.

 “Accidental Deaths and Suicidal Deaths in India, 2015”,

2

published by National Crime Records Bureau,

<www.ncrb.nic.in>last accessed on 6-1-2017.
3
 According to Section 32(1) of the Evidence Act, 1872 the
statements made by a person as to the cause of his death or
as any of the circumstances of the transaction which resulted
in his death are themselves relevant facts and admissible in
evidence.

 See also Paparambaka Rosamma v. State of A.P., (1999) 7 SCC

4

695 and Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC

562.
5
 (2002) 6 SCC 710.
6
 916 So 2d 185 (La Ct App 2005).
7
 W. Shakespeare, King John, Act V, Scene 4.
8
 The Admissibility of  Dying  Declaration, 38 Fordham L Rev 509
(1970).
9
 285 NY 433 : 35 NE 2d 29 (1941).
10
 (1789) 1 Leach 500 at p. 502 : 168 ER 352 at p. 353.
11
 (1984) 4 SCC 116.
12
 Id, 137-39, paras 18 & 21.
13
 (2014) 12 SCC 595, 608, para 28.
14
 AIR 1958 SC 22.
15
 (1992) 2 SCC 474.
16
 K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618.
17
 Nanhau Ram v. State of M.P., 1988 Supp SCC 152.
18
 Paniben v. State of Gujarat, (1992) 2 SCC 474, 480-81, para 18.
19
 2015 SCC Online Mad 13892 : (2015) 2 LW (Cri) 277.
20
 Id, para 32.
21
 Id, paras 32, 52 & 53.
22
 (1994) 1 SCC 73.
23
 Id, 90, para 17.
24
 (2001) 9 SCC 618.
25
 Id, 620.
26
 NCRB report on suicides in India (2014), Chapter 2.
27
 Sharad Birdhichand case, (1984) 4 SCC 116, 147, para 40.
28
 398 So 2d 980 (1981).

 Chelsea Blair Carroll, “Louisiana Evidence Law: The

29

Admissibility of Suicide Notes”, Spring, 2015

<https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2749396>last accessed on 5-1-2017.

 Cauverien v. De Metz, 20 Misc 2d 144 : 188 NYS 2d 627 (NY

30

Sup Ct 1959).
31
 No. 2005-CC-1508, decided on 10-7-2006 (La SC 2006).
32
 State v. Verrett, 419 So 2d 455 at p. 457 (La 1982).

 Mattox v. United States,1892 SCC Online US SC 212, para 14 :

33

36 L Ed 917, 922 : 146 US 140, 152 (1892).

34
 193 W Va 503 : 457 SE 2d 440 at pp. 455-56 (1995).
35
 655 SW 2d 738 at p. 743 (Mo App 1983).

 Intentionally author used the words mortal wound/physical

36

injury.