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Evaluation of Dying Declaration – Recent Judicial Perspectives

Article · January 2016

DOI: 10.5958/0974-4487.2016.00001.8

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 Evaluation of Dying Declaration- Recent Judicial Perspectives
Where words are scarce, they are seldom spent in vain; They breathe the truth, That
breathe their words in pain'. (Richard II)

1
Dr.Dipa Dube, 2Dr.Mukesh Yadav, M.B.B.S., MD, MBA (HCA), PGDHOQM, PGDHR

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.
2
Professor & 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.
References:
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