I.

Introduction

What dying declaration means is a statement of a person who had died explain the circumstances of his
death. In other words statement made by person who is conscious who knows that his death is
imminent and if he believes something to be the cause office death can be introduced into evidence
during the trial in certain cases. A dying declaration is considered to be credible and trustworthy
evidence based on general belief that a person who is on his deathbed will never lie. It is based on the
principle nemo mariturus presumuntur mentri meaning a man will not meet his maker with a lie on his
mouth.

Conclusion

LORD EYRE, C.B., 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.” Thus,
Dying declaration is one of the most important evidence that is admissible in courtroom as dying
statement can be a sole reason for conviction of accuse. Hence, it must be recorded cautiously with all
the technique that the court has mentioned. It should not be tampered at all via anyone. If the death
statement is incomplete, then it is very much to be rejected through the court. It is on the court
discretion to check if the dying declaration is recorded cautiously or not.
Nirbhaya gang rape in Delhi in 2012

The apex court reiterates that a dying declaration given in a proper state of mind can be made the basis
for conviction even in the absence of a thumb impression or signature

By Surabhi Mehra

Relying on various landmark precedents, the Supreme Court has reiterated that where a dying
declaration is true, voluntary and correct, it should not be rejected on the grounds that the person who
recorded it could not affix his signature or thumb impression.

The bench, consisting of Justices Indu Malhotra and R Subhash Reddy, upheld the order of the Madhya
Pradesh High Court wherein the two accused were charged and thereafter convicted under Section 302
read with Section 34 of the Indian Penal Code on the basis of two facts: First, when the witness has
turned hostile, his statement cannot be discarded in its entirety for the reason that he turned hostile,
and second, where there are two dying declarations consistent with each other and in coherence with
facts that lead to conclusion of guilt, only conviction is to be adjudicated and it cannot be vitiated merely
because the thumb impression or signature could not be recorded.

The facts of the case are thus: On December 19, 1991, Ghansu Yadav filed an FIR against the accused
persons wherein he stated that while he was returning from a police station after filing a complaint
against one accused for beating his son, the two accused, who were hiding behind the bushes, caught
him and beat him, causing serious injuries on his hands, legs and head. Thereafter, believing that Yadav
had died, the accused threw his body into a canal. However, he regained consciousness and cried out for
help and passers-by took him to hospital where he succumbed to his injuries. The prosecution
witnesses, after examination-in-chief, turned hostile during cross-examination. The FIR lodged was
considered the first dying declaration and another one was recorded before an executive magistrate.
Both were made when

Yadav was fully conscious and in a fit state of mind.

The sessions court convicted both the accused persons of murder and sentenced them to life
imprisonment. The accused then knocked on the doors of the Madhya Pradesh High Court, which
dismissed the appeal and upheld the finding of the sessions court. In doing so, the High Court relied on
the landmark precedent of Laxman v. State of Maharashtra, wherein it was held: “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. Where it is proved by the testimony of the magistrate that the declarant was fit to
make the statement even without examination by the doctor, the declaration can be acted upon
provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor
is essentially a rule of caution…”1

In addition to the above, the High Court stated that “there was no inconsistency in the statement made
by the deceased in the FIR lodged and the dying declaration recorded by the Executive Magistrate. The
substratum of both the dying declarations remained consistent to the effect that both the appellants
had assaulted the deceased with lathis on his head, hands and legs when he was returning from
Ishanagar Police Station. The dying declaration was corroborated by the medical evidence that the
appellants had inflicted grievous injuries on the deceased, which caused his death”.

The accused then appealed to the Supreme Court. The apex court, referring to the question of whether
reliability can be attributed to the statement of the witnesses who turned hostile, observed that the
statement of witnesses made during the examination-in-chief can be relied upon separately even if their
version was turned upside down during cross-examination. The apex court relied on the landmark
decisions in Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa and Syad Akbar v.
State of Karnataka, where it held that “the evidence of a prosecution witness cannot be rejected in toto,
merely because the prosecution witnesses turned hostile. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the same can be accepted to the extent that
their version is found to be dependable on careful scrutiny”.

Another issue that came up before the court was regarding the absence of any thumb impression or
signature on the dying declaration. It upheld the veracity of the dying declaration while relying on the
landmark precedent in Dharam Pal & Ors. v. State of U.P. In this, it was held that “Section 32(1) of the
Indian Evidence Act deals with dying declaration and lays down that when a 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

1
https://www.indialegallive.com/constitutional-law-news/supreme-court-news/dying-declaration-thumb-signal/
in his death, such a statement is relevant in every case or proceeding in which the cause of the person’s
death comes into question. Further, such statements are relevant whether the person who made them
was or was not at the time when they were made under the expectation of death and whatever may be
the nature of the proceedings in which the cause of his death comes into question. The principle on
which a dying declaration is admissible in evidence is indicated in the maxim Nemo Moriturus
Praesumitur Mentire, which means that a man will not meet his maker with a lie in his mouth”.

The court further said: “…if we look at the report dictated by the deceased in the light of the aforesaid
propositions, it emerges that the names of the accused and the important features of the case have
been clearly mentioned in the report. It contains a narrative by the deceased as to the cause of his
death, which finds complete corroboration from the testimony of eyewitnesses and the medical
evidence on record…”

To press home the point, the Supreme Court quoted the case of Sukanti Moharana v. State of Orissa
wherein the Court took the view that there is no reason why a dying declaration which is otherwise
found to be true, voluntary and correct should be rejected only because the person who recorded it
could not affix his signature or thumb impression.
LEGAL SHORTS: Dying Declaration- Law and Important Judgments

January 24, 201806294

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January 24, 2018

The term “dying declaration” has not been rendered an exclusive definition. However, in general words
it is a legal concept referring to an oral or written statement by a person on the point of death
concerning the cause of his death.

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Section 32 of Indian Evidence Act, 1872

The admissibility of dying declaration has been explained under Section 32 of the Indian Evidence Act,
1872 which states that such a statement can be proved when it is made by a person as to the cause of
his death, or as to any of the circumstances of transaction which resulted in his death. The statement
will be relevant in every case or proceeding in which the cause of that person’s death comes into
question.

Important judgments on Dying Declaration

Now we will discuss some essential cases and judicial dictum which aid in streamlining the legal concept
of dying declaration under the Indian Law:
Emperor v. Mohammad Sheikh[1]– An information lodged by a person who died subsequently relating
to the cause of his death, is admissible in evidence under Section 32 (a) of the Indian Evidence Act, 1872.

Apprehension of Death not necessary

Sharad Bhirdichand Sarda v. State of Maharashtra[2]– Under Indian law it is not necessary that the
declarant should be under any expectation of death i.e. apprehension of death is not necessary nor it is
important that statement shall be made to a magistrate[3]. If the declarant has infact died and the
statements explains the circumstances surrounding the cause of his death the statement will be relevant
even if no cause of death had arisen at the time of making of the statement[4]. In the case of Kans Raj v.
State of Punjab[5], the Apex Court stated that Section 32 (a) of the Indian Evidence Act, 1872 does not
require that the statement sought to be admitted in evidence should have been made in immediate
expectation of death.

Machhi Singh v. State of Punjab[6]– Where statement made to Police when injured was making good
recovery was treated as dying declaration when he died.

Corroboration of Dying Declaration

There is neither rule of law nor of prudence that dying declaration cannot be acted upon without
corroboration[7]. If the Court is satisfied that the dying declaration is true a d voluntary it can base
conviction on it, without corroboration[8]. However, where dying declaration is suspicious it should not
be acted upon without corroborative evidence[9].

In the case of Ram Manorath v. State of U.P.[10], the Supreme Court observed that a dying declaration
that suffers from infirmity cannot form the basis of conviction.
Can a brief dying declaration be discarded as evidence?

The Supreme in the case of Surajdeo Oza v. State of Bihar[11], answered this question in the negative
and held that merely because dying declaration is a brief statement it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees the truth.

The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not
the result of tottering prompting of imagination and the deceased had opportunity to observe and
identify the assailants and was in a fit state to make the declaration[12].

Eyewitness prevails over Medical opinion

In the case of Nanuhau Ram v. State of Madhya Pradesh[13], the Supreme Court opined that normally
the Court in order to satisfy whether deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in
a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

Time factor between statement of dying declaration and death

In several cases the Courts have settled the legal proposition that there has be a proximate relationship
between the statement and the circumstance of death. For instance in the case of Sharad Bhirdichand
Sarda v. State of Maharashtra (supra), the declarant i.e. a married woman had been speaking to her
parents and other relatives and also writing to them expressing the danger to her life. She lost her life
three or four months after that. The Court held that the statement and time of death were not too
remote in time from the point of death. In this case, the Court also held that Section 32 (a) of the Indian
Evidence Act, 1872 is applicable to cases of suicide also.

Dying declaration would not lose its value on the ground that the deceased survived long after making
dying declaration[14].
Dying Declaration is a substantive evidence

In the case of Ram Bihari Yadav v. State of Bihar[15], recognized dying declaration as a substantial piece
of evidence while opining that though dying declaration is an indirect evidence being a specie of hearsay
evidence, yet it is an exception to the rule against admissibility of hearsay evidence. The Court stated
that it is a substantive evidence and like any other substantive evidence requires no corroboration for
forming basis of conviction of an accused.

[1] (1942) 2 Cal 144

[2] (1984) 4 SCC 116

[3] Kulwant Singh v. State of Punjab, AIR 2004 SC 2874

[4] Bhagirath v. State of Haryana, (1977) 1 SCC 481

[5] AIR 2000 SC 232

[6] AIR 1983 SC 957

[7] Munna Raja v. State of M.P., 1976 (3) SCC 104

[8] State of U.P. v. Ham Sagar Yadav, 1985(1) SCC 552

[9] Rasheed Begam v. State of M.P., 1974(4) SCC 264

[10] (1981) 2 SCC 654

[11] AIR 1979 SC 1505

[12] K. Ramchandra Reddy v. Public Prosecutor, 1976(2) SCC 618

[13] AIR 1988 SC 912

[14] Najjam Faraghi v. State of W.B., AIR 1998 SC 682

[15] AIR 1998 SC 1850