DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

2016-17
Final Draft
Evidence Law
Dying Declaration

Submitted to:

Submitted by:

Dr. K A Pandey

Harshit singh

Assos. Prof. Law

Roll no 64

Dr.RMLNLU,LUCKNOW

V SEM ,SEC-A

ACKNOWLEDGMENT
My project topic is Dying Declaration. I would really like to thank Dr. K A Pandey sir
(Assos. Professor law, RMLNLU) for allowing me to make a project on this topic. He also
guided me throughout the process of the making of the draft.
I would also like to thank God for giving me strength to complete my final draft. I
would also like to thank my parents for encouraging me to work on the topic. Last but
not the least I would like to thank my friends who helped me to find more on the topic
and prepare a research paper of my best efforts.

Introduction
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. The principle underlying the admissibility of
the dying declaration is reflected in the legal maxim:- 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 pious sanctity, 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"1
The great poet Richard II also said that the where words are scare, they are seldom spent in
vain, they breathe the truth, that breathe their words in pain 2 hence the idea of dying declaration
are based from these moral principles only.

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
1 Laxmi v Omprakash 2001 Cri.L.J.3302

2 Pg no.171, The Law of Evidence by CJ M Monir.

which, under the circumstances of the case, appears to the Court unreasonable, would constitute
relevant facts.

English Law vis-a vis Indian LawThere 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.3

Admissible-

3 Uka Ram v. State of Rajasthan, (2001) 5 SCC 254; Kishan Lal v. State of Rajasthan, (2000) 1
SCC 310

The admissibility of the dying declaration is based upon the principle that the sense of impending
death produces in mans mind the same feeling as that of the virtuous man under the oath. A
dying man is face to face with his maker without any any motivefor telling a lie. Mathew Arnold
said that the truth sits upon the lips of the dying man. 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.4
The basic error our misconception is that thefor 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
impression 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.
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.
Before Magistrate4 Chacko v. State of Kerala, AIR 2003 SC 265

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.5 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.6

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.7
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.8

Condition of Patient-

5 Laxman v. State of Maharashtra, AIR 2002 SC 2973

6 Kulwant Singh & Ors. v. State of Punjab, (2004) 9 SCC 257
7 Dalip Singh v. State of Punjab, (1979) 4 SCC 332
8 State of Punjab v. Amarjit Singh, AIR 1988 SC 2013

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.9

CorroborationIt is well settled that dying declarations shall have to be dealt with due care and upon proper
inteligence. Though corroboration thereof not essential as such, but its introduction is otherwise
important 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.
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.10

Test of ReliabilityThough 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
9 Lallubhai Devchand v. the State of Gujarat, AIR 1972 SC 1776
10 P. V. Radhakrishnan v. State of Karnataka, AIR 2003 SC 2859

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.

InfirmitiesIt is not the case that the dying declaration will be accepted in all cases, in many cases on facts
and circumstances of the case court can found that the declaration have certain infirmities, hence
on this ground it cannot be accepted. so if the court feels that the infirmities are of such nature
that it will affect decision of the court so the court may reject to form it as basis for the
conviction.

OathThe 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.

More than One Dying Declarations

Law relating to the appreciation of the evidence in the forms of more than one dying declaration
is well settled.If a dying declaration is found to be made voluntarily and in fir mental condition it
can be relied upon without any corroboration. The statement should be consistent throughout. If

the deceased had several opportunities of making such dying declarations , they should be
consistent. However if the court found the inconsistency between the two dying declarations , it
should examine the the nature of the inconsistencies whether material or not. So when the the
dying declarations are inconsistent then the courts should examine which one is corroborate by
the evidence. The facts and circumstances of the case are relevant while deciding.

Conclusion
The dying declarations are statement oral or written made by a person asa to the cause of his
death his death, basically these statements are accepted on the ground that these are statements
made in extremity and when the party is on point of his death so there is very less to lie. It is the
time and the circumstances of the party that makes the statement important under the law. The
evidence in itself is of very high value. It is exception to the rule of hearsay evidence is no
evidence and the evidence which cannot be tested by the cross examination is no evidence at all.

Bibliography
The law of Evidence by CJ M Monir.
SCC Online
Westlaw India
Evidence law by Batuk lal