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Dying Declaration As Documentary Evidence

CONTENTS

INTRODUCTION ....pg.2
HOW A DYING DECLARATION SHOULD BE.......pg.3
WHO MAY RECORD A DYING DECLARATION.......pg.4
IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING
DYING DECLARATION ....pg.5
TABLE SHOWING THE CONDITIONS FOR ADMISSIBILITY AND
EVIDENTIARY VALUE OF A DYING DECLARATIONpg.5
DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST
HEARSAY..pg.11
DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW
a)
b)
c)
d)

Sense of Impending Death...pg.12


Scope of Application...pg.13
Evidentiary Valuepg.14
Competency Of The Declarant.pg.14

RELEVANCE OF DYING DECLARATION


a) Basis of Dying Declaration : How Problematic?.............pg.16
b) Evidentiary Value to be Attached to A Dying Declaration.pg.18
c) Procedures and Precautions..pg.21
JUDICIAL GUIDELINES ON DYING DECLARTIONpg.28
CONCLUSION.pg.30
BIBLIOGRAPHY.pg.31

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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
the evidence system arises in the 1500s.3 Admissibility of a dying declaration as a
relevant piece of evidence is guided by the principle of necessity and religious
belief of the olden days. The necessity being, that in cases, where victim is the only
eye-witness to the crime, the exclusion of his/her statement might defeat the ends
of justice. The religious sanction behind their admissibility comes from the belief
in the fact, that a sense of impending death produces in a man's mind the same
feeling as that of a conscientious and virtuous man under oath-nemo moriturus
praesumuntur mentiri.4

.
.
4
.
3

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.
AshutoshSalil, An Analysis of Indian and English Position of Dying Declaration J 297,Cri.L.J.2005.
Id.
Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co., Nagpur, 1999, p. 633.

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HOW A DYING DECLARATION SHOULD BE?
There is no particular form of dying declaration. However, the best
form of dying declaration is in the form of questions and answers. However,
whenever a dying declaration 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.
A dying declaration may be in the following forms:
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.

ILR 7 385

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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''.
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.

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IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING
DYING DECLARATION:

1. The declarant was in a fit condition of mind to give the statement when
recording was started and remained in fit condition of mind until the
recording of dying declaration is completed.
2. The fact of fit condition of mind of declarant can be best certified by the
doctor.
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

DYING

DECLARATION. THE TABLE GIVEN INFRA SUCCINCTLY EXPLAINS


THE SAME:

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CONDITIONS

FOR

EVIDENTIARY VALUE

ADMISSIBILITY

1. The declarant ,who gave


dying

declaration,

should

have died.

1. Evidentiary value of dying


declaration will change from
case to case according to fact
and circumstances of each

2. Admissibility

of

dying

case.

declaration is explained in
the section 32 (1) of Indian
Evidence Act.

2. A dying declaration must be


recorded

in

exact

words

spoken by the declarant.


3. When the statement is made
by a person as to the cause of

3. If a competent Magistrate

his death, or any of the

records a dying declaration in

circumstances

the

question and answer form ,

transaction which resulted in

such dying declaration will

his death, in cases in which

have much evidentiary value.

of

the cause of that persons


death comes into question.
Such statements are relevant
whether

the

person

who

made this was expecting


death or not. (See section 32
(1) of Indian Evidence Act).

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4. If a dying declaration is
recorded No sooner does the
information receive than the
dying declaration is recorded,
tutoring by interested persons
can be avoided.

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Dying Declaration As Documentary Evidence


4. The dying declaration must
be complete 6.
5. The cause of death must be

5. In case more than one dying


declarations,

all

declarations

must

such
be

identical.

explained by the declarant or


atleast

the

circumstances

6. In

Jai Prakash vs State of

which resulted his/her death

Haryana9, it was observed

must be explained.

that '' a statement of victim


which was recorded by the

6. The declarant, who makes


dying declaration, must be
conscious and coherent.

state in mind.
cause

declarant

be

dying

declaration.

of

death

of

considered

must

be

in

declaration.
8. Inconsistent

as

dying

dying

9. However, the declarant need

declaration is no evidentiary

not be under expectation of

value. ( Smt Kamla vs State

death unlike English Law.

of Punjab10)

10.The declarant need not be


under shadow of death.7

to

7. In some cases, F.I.R was also

question.

Later, such statement was


taken

7. The declarant must be sound

8. The

police officer in hospital.

9. The

dying

declaration

recorded by the Clerk in the

Yet, it was held that ''Dying declaration incomplete as deceased not being able to answer further, held
could be relied upon. (AIR 1956 SC 168). ''
State of Haryana vs Manageram & others (AIR 2003 SC 558)

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11.The dying declaration may
be in verbal form.

presence of Magistrate not


inadmissible. Scribe need not
be produced to prove it11.

12. The whole dying declaration


must

be

taken

into

10.Despite there is a dying

consideration by the Court

declaration,

Court

seeks

but not some portion of it.

further

corroboration.

However, Conviction can be


13.The statement may be made
before the cause of death has
arisen, or before the deceased

based

on

it

without

corroboration if it is true and


voluntary.

has any reason to anticipate


being killed8.

11.Replies by signs and gestures


constitute verbal statement

14. Corroboration
declaration

to

not

dying

necessary.

(1990 Crl.L.J 1129)

dying declaration need not be


stated. (1990 Crl.L.J 2720)
16.It is immaterial that the
put

dumb person and is relevant


and admissible in evidence.

15.Exact words of deceased in

person

resembling the case of

thumb

(AIR 1949 Nag 405)


12. Dying

declaration

exception

to

evidence

because

is

an

hearsay
if

this

evidence is not considered


very purpose of the justice

9
10
8

(1998) 7 SCC 284


AIR 1993 SC 374.
Pakala Narayana Swami vs Emperor

11 (52 Cr.L.J 883)

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impression or signed a dyin

will be forfeited in certain

declaration if the declaration

situations when there may

is duly witnessed.

not be any other witness to


the crime except the person

17.If a declarant, who is laying

who has since died.

in the bed, is unable to get up


to sign due his condition, or

13. Dying declaration is valid

it is convenient for him to

both in civil and criminal

put thumb impression, he can

cases whenever the cause of

put thumb impression.

death comes into question.

18.There is usually no time limit


that

dying

declaration

becomes invalid.

14. Dying

declaration

not

attested by wife or dactor


present there. Smacks of
concoction. Inconsistency in
oral and medical evidence.
Conviction cannot be based
on such evidence12.
15. It is perfectly permissible to
reject

part

of

dying

declaration if it is found to
be untrue and if it can be
separated [ Nand Kumar v.
state of Maharastra13.].

12
13

AIR 1981 SC 1578.


Cri LJ 1988 1313

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16. Declarant suddenly dying
and his thumb impression
taken after his death held
dying declaration admissible
in evidence. (AIR 1962 SC
1252)

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DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST
HEARSAY
Black's Law Dictionary defines hearsay as "A statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Hearsay evidence is testimony in Court of a
statement made out of the Court, the statement being offered as an assertion to
show the truth of matters asserted therein, and thus resting for its value upon the
credibility of the out of Court asserter."14
The hearsay rule generally disallows the use of out of Court statements as
evidence of the truth of the matters asserted in that statement. Because the
person who is giving this evidence is not telling his experience but that of
another person. Dying declaration is one of the exceptions to the rule against
hearsay. The main guiding reason for making dying declaration an exception
to the hearsay rule arises out of necessity. If this evidence not considered
very purpose of justice will be forfeited in certain situation when there may
not be any other witness to the crime except the person who has since
died.15. Since, there might arise situations where someone would have been
shot at or inflicted with fatal injuries while no one was around. In such
situations to let the accused go free just because there was no witness to the
crime would result into miscarriage of justice. Hence, to avoid situations like
above dying declaration has been made an exception to the rule against
hearsay.

14

. Dying Declaration, at http:/www.lawyersclubindia.com/articles


Dr. R. K. Gorea, Critical Appraisal of Dying DeclarationJIAFM, 2004, 26(1).

15

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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
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
16

Avatar Singh Principles of the Law of Evidence,16th ed.2007,Central Law Publication.


.(1869) LR 1 CCR 187.

17

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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
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
18

Wigmore observes "in ascertaining generally the existence of a knowledge of' approaching death, Courts are
now and ':, then making rulings at which common sense revolts. Moved either by declination to allow the
slightest flexibility of rule in applying principles- to circumstances or by a general repugnance to exceptions to
the hearsay rule, they have recorded decisions which can only be desired by-laymen and repudiated by the
profession." C.f; supra, note 2, p. 237.
19
. (1824) 2 B & C 605, c.f.; supra, note 8, p. 652.
20
. Supra, note 4, p. 634.

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proceedings. But in England a dying declaration is admitted in evidence only for
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.

Competency Of The Declarant


Under the English law, the declarant must have been competent as a witness;
thus imbecility or tender age will exclude the declaration. It is however doubtful
whether this rule is applicable in India, though there can be no doubt that declaration 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
21

.
.
23
.
24
.
22

Supra, note 4, p. 634.


(1954) 21 EACA 331, c.f., Nambhard v.The Queen, (1982) 1 All ER 183 PC.
M. Monir, Law of Evidence 7th ed. Universal Law Publishing Co. Allahabad, 2006, p.123.
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."

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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
"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."

25

.
.

26

Panchhi v. State of U.P., 1998 Cri LJ 4044 (SC)


http ://www.lawcom.gov.uk/74.htm.

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RELEVANCE OF DYING DECLARATION :
Basis of Dying Declaration : How Problematic?
Dying declaration is an important piece of evidence and conviction can be
based solely on a dying declaration. Its admission in evidence is necessitated by
the fact that in many of the incidents of murder there is usually no eye-witness
except the injured victim. Hence, if his statement about the circumstances in which
his death occurred is not admitted in evidence during the criminal trial, then the
only evidence of crime would be lost resulting into miscarriage of justice. Another
ground, on which the admissibility of dying declaration rests, is the belief that
"truth sits upon the lips of dying men."27 But, by para 2 of Clause (1) of Section 32
of the Act, the very foundation from which the sanctity of a dying declaration is
born is pulled out from its ethical and religious base and its consequent evidentiary
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

27

.
.
29
.
28

NehaVijayvarigya, "admissibility Of Dying Declaration :Whether Justified2006 (1) Cri.LJ, p. 177..


M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995) 7 NLSJ, p. 88.
R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div)), c.f. www.westlawinternational.com

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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
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.

30

.
.

31

Supra, note 2.
Supra, note 2.

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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
accused and there is no cross-examination of the declarant to test its genuinety or
veracity. Thus, a dying declaration must be subject to close scrutiny.32A dying
declaration in India stands on a different footing than in England. Under the
English law, credence and the relevancy of a dying declaration is important only
when person making such statement is in hopeless condition and expecting an
imminent death.33 In India, the weight to be attached to a dying declaration
depends not upon the expectation of death that is presumed to guarantee the truth
of the statement, but upon the circumstances and surrounding under which it was
made, and very much also upon the nature of record that has been made of it.34
It is almost a question of fact whether a dying declaration should be relied
upon or not. In one of its earliest judgments on dying declaration the Supreme
Court had held that, it was not safe to convict an accused on an uncorroborated
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
32

.
.
34
.
35
.
33

Supra note 17, p. 125.


I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra, note 18, p. 413.
Supra note 22
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.)

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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."
The position with respect to corroboration of a dying declaration in India is
similar to that in England. The position being, that there is no absolute rule of law
that prevents an uncorroborated dying declaration from being admitted in evidence.
Courts while admitting dying declarations need to do a great balancing act between
the rights of the accused and ensuring delivery of justice. Since, the accused cannot
cross-examine declarant as to the truth of his/her declaration; there arises need for
a dying declaration that will inspire full confidence of the Court in its correctness.38

36

37
38

AIR 1958 SC 22 : 1958 Crj LJ 106.


1991 SCC (1) 744

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.

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Section 32(1) of the Act makes it clear that the declaration can be admitted
only when the death of the declarant comes into question. Such a construction
poses problems in many situations. For e. g. B and his wife were shot at. Both of
them died. Mrs. B. when dying described the assailant. Her declaration was
excluded, because it was not her death but the death of her husband that was the
subject matter of the charge. Wigmore calls this exclusion the senseless rule of
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

(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.
39
40

Supra, note 2.
Supra, note 28, p. 375.

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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
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 in41
42

Supra note 10.


AIR 1979 SC 1173 : 1979 Cri LJ 700

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stigation 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
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
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.

43

.
.

44

45

46

AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan, 1993 Cr. L. J. 2696 (Raj)
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.
Gulab Singh v. State, 1995 Cr. L. J. 3180 (Del)
(2002) 8 SCC 33

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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,
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.

47

.
.

48

2002 Cri LJ 4095


Surjeet Kaur v. State of M.P. 1994 Cri LJ 1886.

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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.
(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.

49

AIR 1992 SC 1817.

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(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.
In case of State of UP v Madan Mohan50 court admitted that Conviction can be
based on it without corroboration if it is true and voluntary. Dying declaration
becomes unreliable if it is not as per prosecution version. This has been summed
up the Supreme Court:
1. It is for the court to see that dying declaration inspires full confidence as the
maker of the dying declaration is not available for cross examination
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of the doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the
declarant was not acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police
officer to record the dying declaration only if condition of the deceased was so
precarious that no other alternative was left.

50

AIR 1989 SC 1519.

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5. Dying declaration may be in the form of questions and answers and answers
being written in the words of the person making the declaration. But court cannot
be too technical.

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JUDICIAL GUIDELINES ON DYING DECLARTION

Sudhakar v . State of Maharashtra , AIR 2000 SC 2602: (2000) 6 SCC 671


In this case honble supreme court has laid down following guidelines:1. Section 32 is an exception of the rule of hearsay and makes admissible the
statement of a person who dies, whether the death is a homicide or a suicide,
provided the statement relates to the cause of death, or exhibits circumstances
leading to the death. In this respect, as indicated above, the 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.
2. The test of proximity cannot be too literally construed and practically reduced to
a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case.
For instance, where death is a logical culmination of a continuous drama long in
process and is, as it were a finale of the story, the statement regarding each step
directly connected with the end of the drama would be admissible because the
entire statement would have to be read as an organic whole and not torn from the
context. Sometimes statements relevant to or furnishing an immediate motive may
also be admissible as being a part of the transaction of death. It is manifest that all
these statements come to light only after the death of the deceased who speaks
from death. For instance, where the death takes place within a very short time of
the marriage or the distance of time is not spread over more than 3-4 months the
statement may be admissible under section 32.
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3. The second part of clause (1) of section 32 is yet another exception to the rule
that in criminal law the evidence of a person who was not being subjected to or
given an opportunity of being cross-examined by the accused, would be valueless
because the place of cross-examination is taken by the solemnity and sanctity of
oath for the simple reason that a person on the verge of death is not likely to make
a false statement unless there is strong evidence to show that the statement was
secured either by prompting or tutoring.
4. It may be important to note that 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.
5. Where the main evidence consists of statements and letters written by the
deceased which are directly connected with or related to her death and which
reveal a tell-tale story, the said statement would clearly fall within the four corners
of section 32 and, therefore, admissible. The distance of time alone in such cases
would not make the statement irrelevant.

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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.

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BIBLIOGRAPHY
Ashutosh Salil, An Analysis of Indian and English Position of Dying
Declaration J 297,Cri.L.J.2005
Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn
Dying Declaration, at http:/www.lawyersclubindia.com/articles
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
M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995) 7
NLSJ,
Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence, vol. 1 Madras
Law journal, Madras, 1998
Black's Law Dictionary, Ed, Bryan A. Garner, 7th edn, West Group, St.
Paul, Minn, 1999

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