Abstract

The principle on which dying declarations are admitted in evidence is

indicated in the legal maxim- nemo
moriturus proesumitur mentiri-a man will not meet his Maker with a lie in his
mouth. These 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 induced by the most powerful
considerations to speak the truth; a
situation so solemn and serene that the law considers it an obligation to
accept the veracity of the statement.
Dying Declarations have thus come to occupy an important position in the
realm of law of evidence. It has been
solely relied upon for the purposes of conviction. However, over the years,
the Indian judiciary has sought to
evolve various principles to govern the admissibility of dying
declarations. The present article analyses the
position of law with regard to dying declaration in India.
Key Words: Dying Declaration, Evidence, Mental Fitness, Physical Fitness,
Truthfulness
Corresponding Author:
1 Dipa Dube
Designation:
Institution:
Address:
Email: dipadube@rgsoipl.iitkgp.ernet.in
Mob.No.
2Professor & Head
Dept. Forensic Medicine & Toxicology
K.D. Medical College, Mathura, U.P.
Email: drmukesh65@yahoo.co.in
Mob.No.8527063514
Introduction
The law of evidence elaborates on the relevance and admissibility of
evidence before the courts. The principle
which governs the law is that evidence which cannot be tested is not
admissible in the Court of Law. In other
words, the administration of oath and cross examination of the maker of a
statement establishes the veracity of
the same. Thus, hearsay evidence is no evidence.
Nevertheless, in situations, the law makes an exception as a matter of
necessity such as where a man is in his
death bed and makes a statement relevant to the cause of death. The law
attaches great solemnity and sanctity to
the words of the dying man on the ground that at the verge of his likely
departure from the earthly world, he will
not indulge in falsehood and secondly, the exclusion of such evidence may
result in miscarriage of justice in as
much as the victim may be the only eye witness of a serious crime.
Dying Declarations have thus come to occupy an important position in the
realm of law of evidence. It has been
solely relied upon for the purposes of conviction. However, over the years,
the Indian judiciary has sought to
evolve various principles to govern the admissibility of dying
declarations. The present article analyses the
position of law with regard to dying declaration in India.
Dying Declaration & Indian Evidence Act
Section 32 of the Indian Evidence Act 1872 speaks of special statements.
It comes into play only is specific
situations, that is, when either the person is dead or not found or incapable
of giving evidence or attendance
cannot be procured without unreasonable delay. On proof of the former,
the knowledge of the person who is
unavailable should be transmitted to the court through some other
person. Sub section (1) of the section
enumerates that statements made by a person as to the cause and
circumstances leading to his death are relevant
and admissible in evidence as dying declarations.
The principle on which dying declarations are admitted in evidence is
indicated in the legal maxim- nemo
moriturus proesumitur mentiri-a man will not meet his Maker with a lie in his
mouth. These 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 induced by the most powerful
considerations to speak the truth; a
situation so solemn and serene that the law considers it an obligation to
accept the veracity of the statement.
Global Scenario /Scenario in UK:
Under the English law, it is essential to the admissibility of dying
declarations, first, that the declarant should
have been in actual danger of death at the time when he made the
statement; secondly, that he should have a full
apprehension of his death and lastly, death should have ensued.
Indian Scenario:

For a statement to be attracted under section 32(1) Indian Evidence Act, it

is neither necessary that the death
should have a nexus in terms of a fixed time with the statement nor that
the victim who made the statement
should relate to the circumstances surrounding the event which ultimately
led to death. Under section 32, this
statement must relate to the cause of the declarant’s death, or as to any
of the circumstances of the transaction
which resulted in his death. The statements by deceased are not
required to have been made in imminent
expectation of death so as to be admitted in evidence. The statement is
admissible although it is made before the
cause of death has arisen, or before the deceased has any reason to
anticipate being killed. The expression “any
of the circumstances of the transaction which resulted in his death” is
wider in scope than the expression the
cause of his death. The statement of the deceased must disclose that the
circumstances specifically narrated by
him have some direct or proximate bearing on the causes contributing
in the transaction which ultimately
resulted in his death.
Before a statement may be admitted as a dying declaration it must be
proved that the person who made it is
dead, and the burden of proving death is upon the person who wishes to
prove the dying declaration. If a person
making the dying declaration continues to live, his statement cannot be
admitted as dying declaration under
section 32 but it may be relied on under section 157 to corroborate or
contradict the statement in court.[1]
Procedure for Recording of Dying Declaration
A dying declaration may be oral or in writing. Any method of communication
may be adopted, such as signs,
gestures, a nod or even a glance. A declaration must be recorded, so
far as possible, in the language of the
declarant. It adds strength and reliability to the declaration.
It is now well settled that the declaration need not be in question and
answer form. Even if the statement consists
of few sentences and is in the actual words of the makers it would suffice. It
is also important that the declarant
was in a fit state of mind and capable of making the statement at the time
when it was recorded. Certificate from
the doctor and endorsement from him that the declarant was in a fit
condition is important. Nevertheless the
absence of such certificate does not in itself negate the validity of the dying
declaration. There is no particular
form or procedure for recording a dying declaration, nor is it required to be
recorded only by a magistrate. In the
exigencies of situation, it may be recorded by the doctor, police officer,
magistrate or by any other person. One
of the principles formulated by the Court is that where a dying
declaration is recorded by a competent
Magistrate, it would stand on a much higher footing. However, what
evidentiary value or weight has to be
attached to that statement, must necessarily depend on the facts and
circumstances of each particular case.
The Supreme Court has stated that, having regard to the sanctity attached
to a dying declaration as it comes from
the mouth of a dying person it should be in the actual words of the
maker of the declaration. Generally, the
dying declaration ought to be recorded in the form of questions answers
but if a dying declaration is not
elaborate but consists of only a few sentences and is in the actual words of
the maker, the mere fact that it is not
in question answer form cannot be a ground against its acceptability or
reliability.
The mental condition of the maker of the declaration, alertness of mind,
memory and understanding of what he
is saying, are matters which can be observed by any person. But to lend
assurance to those factors having regard
to the importance of the dying declaration, the certificate of a medically
trained person is insisted upon.
In the absence of availability of a doctor to certify the above-mentioned
factors, if there is other evidence to
show that the recorder of the statement has satisfied himself about
those requirements before recording the
dying declaration, there is no reason as to why the dying declaration should
not be accepted. [2]
Evidentiary Value of a Dying Declaration
Dying declaration is entitled to great weight. It may form the sole basis
for conviction without the need for
independent corroboration. A dying declaration is a piece of evidence
and can be acted upon without
corroboration if it is found to be otherwise true and reliable. However, the
court has to satisfy itself that the
dying declaration is of such a nature as to inspire full confidence in the
court in its correctness. The court has to
be on guard that the statement of the deceased was not as a result of
tutoring, prompting or a product of
imagination. The court has to be further satisfied that the deceased was in
a fit state of mind and had a clear
opportunity to observe and identify the assailants. Once the court is
satisfied that the declaration is true and
voluntary, undoubtedly, it can base its conviction without any further
corroboration. [3].
Recent Judicial Perspectives:
Medical Certification
In Sunder vs. State of Uttaranchal [4], a family of six was set on fire and left
to die with only one surviving the
holocaust. While most of the victims died instantaneously, one of the
members recorded a dying declaration
alleging that the accused had come to the house at night with jerry cans
filled with petrol and set the house on
fire and closed the door to prevent the escape of the members. It was
challenged on the ground that the dying
declaration was not creditworthy since it did not have any endorsement of
the doctor that the victim was in a fit
condition to make the statement. Rejecting the plea, the Supreme Court
held that there was no reason to reject
the declaration for the reason that there was no endorsement of the doctor
since the Magistrate had specifically
asserted that he had satisfied himself by asking the doctor about the
mental condition of the victim prior to
recording the statement and the same had corroboration from other
evidences.
Similarly, in the case of Laxman vs. State of Maharashtra [5], the court
asserted that- normally the court in order
to satisfy that the deceased was in a fit state of mind look for medical
opinion. But where the eye witnesses state
that the deceased was in a fit and conscious state to make the declaration,
the medical opinion will not prevail,
nor can it be said that since there is no certification of the doctor, the dying
declaration is not acceptable.
Multiple Dying Declarations
In Sayarabano@Sultana Begum vs. State of Maharashtra [6], two dying
declarations had been recorded. As per
the first declaration, the deceased had met with an accident. She was hit by
the kerosene lamp which fell on her
body and caught fire. While recording the second declaration, the Judicial
Magistrate asked her why she was
changing her statement. The deceased replied that her mother-in-law had
told her not to give any statement
against the family members of her in-laws. But, in fact, it was her mother-in-
Law who threw the kerosene lamp
on her and thus, she was burnt. She also stated that her mother-in-Law
was harassing her. In such a situation, the
Court held that the second dying declaration was true and inspired
confidence. Ill treatment of the deceased was
clearly established and completely proved on the basis of the evidence of
other witnesses. Lakhan vs. State of
MP [7].
Again, in Sher Singh vs. State of Punjab [8], where three dying declarations
were recorded, the court held that
conviction could be based on the third declaration which was consistent
with the second, while the first one
recorded immediately after being admitted to hospital was under threat or
duress. However, in State of AP vs. P.
Khaja Hussain [9] the Court set aside a conviction as there was a variation
between the two dying declarations
and there was no other evidence to connect the accused to the crime.
Severability of Dying Declaration
Where a dying declaration cannot be severed being indissolubly linked,
the court would well be justified in
rejecting the whole of the dying declaration. There may, however, be
other cases wherein the two parts of
a dying declaration may be severable and the correctness of one part does
not depend upon the correctness of the
other part. In the last mentioned case, the court would not normally act
upon a part of the dying declaration, the
other part of which has not been found to be true, unless the part
relied upon is corroborated in material
particulars by the other evidence on record. If such other evidence shows
that part of the dying declaration relied
upon is correct and trustworthy, the court can act upon that part of the
dying declaration despite the fact that
another part of the dying declaration has not been proved to be correct.
[10]. In a case, where the lady having
sustained burn injuries, recorded her dying declaration to include all the
members of the in- laws family and
elaborated on their roles, the Supreme Court held that severance of the
dying declaration is difficult since there
was no distinction made in the role of any of the accused persons and they
have all been clubbed together with
regard to the harassment and death of Asha Devi. The entire declaration
was rejected in the instant case.
Recording in Different Languages
In B. Shashikala vs. State of A.P. [12], a question arose regarding
recording of the dying declaration of the
victim in Hindi by the Magistrate who asked the questions in English with
the victim replying in Hindi and the
Doctor acting as a translator between them. It was held that since both
the Magistrate and the Doctor had
working knowledge of Hindi and since both had certified about the
translation, there was no possibility of the
victim making any tutored statement. The declaration was, therefore, held
to be rightly admitted and relied upon
by the Courts below. Similarly, in Thanu Ram vs. State of MP [13], where
there were confusions with regard to
the fact whether the deceased had spoken in Chattisgarhi or Hindi, though
the recording had been done in Hindi,
the court held that the dying declaration was in clear and simple language,
without any irregularity or ambiguity
and the same could be relied upon for the purposes of conviction.
Governing Principles
The principles governing dying declaration, as summed up by the court,
are as under [14]:
(i) There is neither rule of law nor of prudence that dying declaration cannot
be acted upon without
corroboration. [15]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it,
without corroboration. [16].
(iii) This 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
opportunity to observe and
identify the assailants and was in a fit state to make the declaration. [17]
(iv) Where dying declaration is suspicious it should not be acted upon
without corroborative evidence.
[18]
(v) Where the deceased was unconscious and could never make any dying
declaration the evidence
with regard to it is to be rejected. [19]
(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction. [20]
(vii) Merely because a dying declaration does not contain the details as to
the occurrence, it is not to be
rejected [21]. If it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the
statement itself guarantees truth. [22]
(viii) 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 has said that the
deceased was in a fit and conscious state to make this dying
declaration, the medical opinion
cannot prevail. [23]
(ix) If the deceased remained alive for a long period of time after the
incident and died after recording
of the declaration, it may show that his condition was not overtly critical or
precarious when the
declaration was recorded. [24]
(x) Where the prosecution version differs from the version as given in the
dying declaration, the said
declaration cannot be acted upon. [25]
(xi) When they are more than one dying declarations of the same person,
they have to be read as one
and the same statement for proper appreciation of the value and, if they
differ from each other on
material aspects, effort should be made to see if they could be
reconciled. The court has to
consider each of them in its correct perspective and satisfy itself as to
which one of them reflects
the true state of affairs. In case, they are inconsistent, the Court must rely
upon other evidence, if
available, as it is not safe to act only on inconsistent dying declarations and
convict the accused.
[26]
Conclusion
Dying Declaration is a significant piece of evidence. It may be the last and
most pertinent available evidence
concerning the commission of a crime. Accordingly, the law of evidence
makes it relevant as well as admissible.
It is also substantive evidence against the accused and a conviction can be
based solely on a dying declaration.
Given the importance attached to dying declaration, the courts have
evolved various principles to guide it. It is
important that the dying declaration should be free from errors,
manipulations and modifications. It should strike
to be genuine, free from all doubts, stating the true story of the maker. In
case the court entertains any doubt
with regard to the same, it is imperative for the court to look into
corroborative evidences to test the truthfulness
of the dying declaration. In case no such evidence is available, the court
should reject the dying declaration. It is
the duty of the court to consider dying declaration in is correct perspective
and satisfy itself of its truthfulness
before it can proceed to convict an accused.
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