Dying Declaration - Section-32(1) of Indian Evidence Act

The purpose of this research is to identify the principle of “Leterm Mortem” which means “words
said before death” & in a legal term it is called ‘Dying Declaration’. The word “Dying Declaration”
itself tells the meaning But this project highlights those questions, which have a great value in legal
field relating to dying declaration. The study tells about those statements which converted into
dying declaration, different forms of dying declaration, which are admissible by law, it’s importance
in the law & clears that has it some value or not? And if it has, then what are the exceptions of it?

A statement by a person who is conscious and knows that death is imminent concerning what he or
she believes to be the cause or circumstances of death that can be introduced into evidence during a
trial in certain cases.

A dying declaration is considered credible and trustworthy evidence based upon the general belief
that most people who know that they are about to die do not lie. As a result, it is an exception to the
Hearsay rule, which prohibits the use of a statement made by someone other thanthe person who
repeats it while testifying during a trial, because of its inherent untrustworthiness. If the person who
made the dying declaration had the slightest hope of recovery, no matter how unreasonable, the
statement is not admissible into evidence. A person who makes a dying declaration must, however,
be competent at the time he or she makes a statement, otherwise, it is inadmissible. A dying
declaration is usually introduced by the prosecution, but can be used on behalf of the accused.

Word “Dying Declaration” means a statement written or verbal of relevant facts made by a person,
who is dead. It is the statement of a person who had died explaining the circumstances of his death.
This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his
maker with lie on his mouth. Our Indian law recognizes this fact that ‘a dying man seldom lies.’ Or
‘truth sits upon the lips of a dying man.’ It is an exception to the principle of excluding hearsay
evidence rule. Here the person (victim) is the only eye-witness to the crime, and exclusion of his
statement would tend to defeat the end of justice. Section 32 of Indian Evidence act deals with the
cases related to that person who is dead or who cannot be found.

I.1 Section 32: Cases in which statements of relevant fact by person who is dead or cannot be
found.—statement, written or verbal, or 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 expanse which, under the circumstances of the case
appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death.

(2) Or is made in course of business.
(3) Or against interest of maker.
(4) Or gives opinion as to public right or custom or matters.
(5) Or relates to existence of relationship.
(6) Or is made in will or deed relating to family.
(7) Or in document relating to transaction mentioned in section 13, clause (a).
(8) Or is made by several persons and expresses feelings relevant to matter in question.

But here, we are studying about ‘dying declaration’ which deals with the cases relate to cause of
death. It is mentioned in sub-section (1) of section 32 of Indian Evidence act.
Section 32 (1) When it relates to cause of death.—When 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,
in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under exception of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.

Illustration
The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is,
whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to cause of his or her death, referring respectively to the murder, the rape
and the actionable wrong under consideration wrong under consideration are relevant facts.

In Ulka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by a person as
to cause of his death or as to any circumstances of transaction which resulted into his death, in case
in which cause of his death comes in question is admissible in evidence, such statement in law are
compendiously called dying declaration.”

The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that ‘the principle on
which a dying declaration is admitted in evidence is indicated in latin maxim, nemo morturus
procsumitur mentri, a man will not meet his maker with a lie in his mouth. Information lodged by a
person who died subsequently relating to the cause of his death, is admissible in evidence under this
clause.

In a leading case, wife of the accused had borrowed money from the deceased in the sum of Rs.
3000 at the interest of 18 percent. Related to his debt a number of letters had signed by the wife of
accused which was discovered from the house of deceased after his death. One letter which was not
signed by someone had been received by the deceased K.N. on 20th March,1937, it was reasonably
clear that it would had come from the wife of accused, who invited him to come Berhampur on that
day or next day.

Widow of K.N. had told to the court that his husband had told him that Swami’s wife had invited him
to come to Berhampur to receive his payment. Next day K.N. left his house to go to Berhampur & on
23rd March, his body, which was cut in to seven pieces, found in a trunk in the compartment of a
train at Puri. The accused was convicted of murder & sentenced to death because there were many
evidence against him.

In Wazir Chand v. State of Haryana in which Court observed pakala ruling & said, ‘applying these to
the facts of the case their Lordships pointed out that the transaction in the case was one in which
the deceased was murdered on 21st March & his body was found in a trunk proved to be bought on
behalf of the accused. The statement made by the deceased on 20th March that he was setting out
to the place where the accused was living, appeared clearly to be a statement as to some of the
circumstances of the transaction which resulted in his death. Thus the statement was rightly
admitted.
In the case of R. v. Jenkins the accused was charged with the murder of a lady. He attacked her at
midnight but she had recognized her because there were sufficient light to identify him. When
magistrate’s clerk asked her about the accused to record her statement, she told that he was Jenkins
who had done the crime. The clerk asked her that, did she make the statement with no hope of her
recovery then, she replied that she was making that statement with no hope of recovery. But when
the clerk read that statement over to her, before her signing, she told her to add the word ‘at
present’ in that statement.

It was held by the court that the statement was not a dying declaration as her insistence upon the
words “at present” showed that she had some, however faint hope of recovery.

II. Identification Through Dying Declaration

There is no particular form of dying declaration which is identified or admissible in the eye of law.
But that must be functioning as a piece of evidence with the proper identification.

In a case, Apex court has also held that, “The crux of the whole matter was as to who had stabbed
the deceased & why. These crucial facts are to be found in the dying declaration.”

II.1 Question answer form

Where the dying declaration was not recorded in question-answer form, it was held that it could not
be discarded for that reason alone. A statement recorded in the narrative may be more natural
because it may give the version of the incident as perceived by the victim.

II.2. Gestures & signs form

In the case of Queen-Empress v. Abdullah Accused had cut the throat of the deceased girl &
because of that, she was not able to speak so, she indicated the name of the accused by the signs of
her hand, it was held by the full bench of the Allahabad High Court “If the injured person is unable to
speak, he can make dying declaration by signs & gestures in response to the question.” In another
case The Apex Court observed that “the value of the sign language would depend upon as to who
recorded the signs, what gestures & nods were made, what were the questions asked, whether
simple or complicated & how effective & understandable the nods & gestures were.”

II.3. Language of statement

Where the deceased made the statement in Kannada & Urdu languages, it was held that the
statement could not be discarded on that ground alone, or on the ground that it was recorded only
in Kannada. Where the statement was in Telugu & the doctor recorded it in English but the
precaution of explaining the statement to the injured person by another doctor was taken, the
statement was held to be a valid dying declaration.

II.4. Oral Declaration

The Apex Court emphasized the need for corroboration of such declaration particularly in a case of
this kind where the oral statement was made by the injured person to his mother & she being an
interested witness. Such declaration has to be considered with care & caution. A statement made
orally by the person who was struck down with a lathi blow on head and which was narrated by the
witness who lodged the F.I.R. as a part of the F.I.R. was accepted as a reliable statement for the
purpose of Section 32.
II.5. Thumb Impression

A dying declaration authenticated by thumb impression was considered to be doubtful in view of the
fact that the victim had sustained 100 percent burns.

II.6. Incomplete Statement

The Apex Court had held that if a deceased fails to complete the main sentence (as for instance, the
genesis or motive for the crime) a dying declaration would be unreliable. However, if the deceased
has narrated the full story, but fails to answer the last formal question as to what more he wanted to
say, the declaration can be relied upon.

II.7. where declarer survives

In a case decided by the Apex Court, the deceased who had made the dying declaration was
seriously injured, but was conscious throughout when making the statement. The Court held that
mirror incoherence in his statement with regard to facts & circumstances would not be sufficient
ground for not relying on his statement, which was otherwise found to be genuine.

II.8. Absence of medical statement of fitness

Where the dying declaration of a dowry victim was challenged on the ground that doctor’s
certificate of mental fitness for statement was not there, the Supreme Court attached no
importance to that omission, because the case was not wholly dependent upon the declaration. The
facts were on record showing that the injured woman had gone to the hospital all alone changing
vehicles on the way. This was sufficient evidence in itself to show her fitness.

II.9. Where interested witnesses were attending to the deceased

The Gauhati High Court has held that when the interested witnesses were attending on the
deceased when he was making a dying declaration, & because of the injuries, the deceased was
neither physically or mentally fit, no reliance could be placed on the dying declaration, in the
absence of evidence to show that the deceased was physically & mentally capable of making the
dying declaration, & was not the victim of any tutoring.

II.10. Where statement is not relevant to the cause of death

When the person making the statement is not proved to have died as a result of the injuries received
in the incident, his statement cannot be said to be the statement as to the cause of his death or as to
any of the circumstances of transaction which resulted in his death.

II.11. Medical Report

The doctor in the hospital clearly recorded in the Accident Register of the Hospital that the patient
was conscious, her orientation was good & that she answered well the question put to her. Her
statement could not be discarded on the basis of her injury or post-mortem report in which it was
said that having regard to the nature of injuries sustained by the deceased, she could not have been
in a position to make a statement. Where the medical report of fitness was available to the
magistrate who was to record the statement, it was held that it was not necessary for the magistrate
to make an independent inquiry as to fitness.

II.12. Doctor’s statement

In the case of a bride burning, the doctor to whom the deceased was taken for treatment deposed
that soon after her admission, she said that her husband had poured kerosene on her clothes and
set her ablaze. The doctor made a note of it in the case papers. The testimony of the doctor became
supported by the contemporaneous record. The Court said that the doctor had no reason to falsely
depose against the accused or prepare false case papers.

II.13. FIR as dying declaration

In K.. Ramachand Reddy v. Public Prosecutor, it was held that where an injured person lodged an FIR
& then died, it was held to be relevant as a dying declaration.

II.14. Dowry Death, wife burning etc

The death of a married woman in the matrimonial home three or four months after her statements
expressing the danger to her life has been held by the Apex Court to be a statement explaining the
circumstances of her death. In a case of wife-burning, after recording her statement that her
husband had set afire, she mercifully pleaded that her husband should not be beaten. It was argued
on this basis that she wanted to exonerate her husband. The court replied:

This is a sentiment too touching for tears & stems from the values of the culture of the Indian
womanhood; a wife when she has been set afire by her husband, true to her tradition, does not
want her husband should to be assaulted brutally. It is this sentiment which promoted this dying
tragic woman to say that even if she was dying, her husband should not be beaten. We are unable to
appreciate how this statement can be converted into one exculpative of the accused. In a further
application of this principle to a case arising out of “that atrocious species of murder “ , called wife
burning, the Apex Court said: “The three dying declarations corroborated by other circumstances are
sufficient in our view to bring home the offence. The counsel has sought to discredit these
declarations forgetting that they are groaning utterances of a dying woman in the grip of dreadful
agony which cannot be judged by the standard of fullness of particulars which witnesses may give in
other situations. To discredit such dying declarations for short- falls here or there or even in many
places is unrealistic, unnatural & unconscionable, if basically there is credibility. The terrible in this
case has taken place in the house & in the presence of the husband who has been convicted. We
hardly see any reason for interfering in this conviction. In a case a bride was 80% burnt when she
had given statement to the doctors. But according to doctors she was in a fit condition to give
statement. The court said that from the fact of 80% burns no inference was to be drawn that she
could not have been capable of making the statement. Where the declaration of the deceased wife
was deposed only by her mother, the Court held this to be not sufficient to convict.

II.15. Statements made to or implicating relatives

The Apex court laid down in the subsequent case of Barati v. State of U.P., that a dying declaration
made to the relatives of the deceased, when properly proved can also be trusted. In this case the
deceased who was killed by sprinkling acid on him first made the statement to his brother & son,
repeated it at the police station & again at the hospital charging the accused, the court held that the
statement was worthy of credit. Where the dying statement was recorded by the wife of the
deceased, the Supreme Court did not reject it only on that ground, though it added that such
evidence should be scrutinized with care.

III. Evidentiary Value of Dying Declaration

In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was observed as under :-

“The dying declaration is undoubtly admissible under section 32 & not being statement on oath so
that its truth could be tested by cross-examination, the court has to apply the scrutiny & the closest
circumspection of the statement before acting upon it. While great solemnity and sanctity is
attached to the words of a dying man because a person on the verge of death is not likely to tell lies
or to connect a case as to implicate an innocent person, yet the court has to be on guard against the
statement of the deceased being a result of either tutoring, prompting or a product of his
imagination. The court must be satisfied that the deceased was in a fit state of mind to make the
statement after the deceased had a clear opportunity to observe & identify his assailants & that he
was making the statement without any influence or rancor. Once the court is satisfied that the dying
declaration is true & voluntary, it can be sufficient to found the conviction even without further
corroboration.”

In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to dying to
dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in which the
dying declaration was made.

(iv) A dying declaration stands on the same footing as other piece of evidence & has to be judged in
the light of surrounding circumstances & with reference to the principle governing the weight of
evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper manner,
that is to say, in the form of questions and answers, &, as far as practicable in the words of the
maker of the declaration stands on a much higher footing than a dying declaration which depends
upon oral testimony which may suffer from all the infirmities of human memory & human character.

(vi) In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example, whether there
was sufficient light if the crime was committed in the night; whether the capacity of man to
remember the facts stated had not been impaired at the time he was making the statement by
circumstances beyond his control; that the statement has been consistent throughout if he had
several opportunities of making a dying declaration apart from the official record of it; & that the
statement had been made at the earliest opportunity & was not the result of tutoring by interested
party.”

IV. Exceptions of Dying Declaration

The exceptions of ‘Dying declaration’ stipulate that where the statements made by dying persons
are not admissible:

IV.1. If the cause of death of the deceased is not in question: If the deceased made statement before
his death anything except the cause of his death, that declaration is not admissible in evidence.

IV.2. If the declarer is not a competent witness: declarer must be competent witness. A dying
declaration of a child is inadmissible. In Amar singh v. State of Madhya Pradesh,1996 Cr LJ (MP)
1582, it was held by M.P. High Court that without proof of mental or physical fitness, the dying
declaration was not reliable.

IV.3. Inconsistent declaration: Inconsistent dying declaration is no evidentiary value.

IV.4. Doubtful features: In Ramilaben v. State of Gujarat it was held by the court that second degree
burn injuries, the injured dying 7-8 hours after the incident, four dying declarations recorded but
none carried medical certificate. There were other doubtful features, evidence not taken into
account.

IV.5. Uninfluenced declaration: it must be noted that dying declaration should not be under
influence of any one.

IV.6. Untrue declaration: it is perfectly permissible to reject a part of dying declaration if it is found
to be untrue & if it can be separated.

IV.7. Incomplete declaration: dying declaration must be complete.

IV.8. if the statement relates to the death of another person: If the statement made by the deceased
does not relate to his death, but to the death of another person, it is not relevant.

IV.9. Contradictory statements: if a declarant made more than one dying declarations & all are
contradictory, then those all declarations lose their value.

IV.10. Unsound person: where the married dying of burns was a person of unsound mind & the
medical certificate vouchsafed her physical fitness for a statement & not the state of mind at the
crucial moment, the court said that the statement could not be relied upon.

IV.11. I If dying declaration is not according to prosecution: in the case of State of U.P. v. Madan
Mohan the Apex Court held that:

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 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 & police officer to record the
dying declaration only if condition of the deceased was so precarious that no other alternative was
left.
5. Dying declaration may be in the form of questions & answers & answers being written in the
words of the person making the dying declaration. But court cannot be too technical.

V. Conclusion
“Dying Declaration” is a legal concept refers to that statement which is made by a dying person,
explaining the circumstances of his death. LORD LUSH, L.J., quoted that “A dying declaration is
admitted in evidence because it is presumed that no person who is immediately going into the
presence of his Maker, will do so with a lie on his lips. But the person making the declaration must
entertain settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will
not do.”

LORD EYRE, C.B., also held that “The principle on which this species of evidence is admitted is, that
they are declarations made in extremity, when the part is at the point of oath, & when every hope of
this world is gone; when every motive of falsehood is silenced, & the mind is induced by the most
powerful consideration to speak the truth; a situation so solemn & awful is considered by law as
creating an obligation equal to that which is imposed by a positive oath administered in the court of
justice.”

Dying declaration is admissible on the sole ground that it was made in extremis. And in India, its
admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by the above mentioned
statements given by different courts that dying declaration can be in any form but it must be
recorded carefully & duly proved, which the courts make admissible as the “DYING DECLARATION”. .
***************
Advocate Shipra Arora Dhiman
(Asst. Professor, NIMT Vidhi Evam Kanun Sansthan, Greater Noida, India)

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