DYING DECLARATION--

“A Man Will Not Meet His Maker With A Lie In

His Mouth”

Raghvendra Singh Raghuvanshi ∗

"Have I met hideous death within my view,

Retaining but a quantity of life,
Which bleeds away even as a form of wax,
Resolveth from his figure against the fire?
What is the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?"
--- Shakespeare

TABLE OF CONTENTS

Introduction

Nemo moriturus proesumitur mentiri rule

History of dying declarations

Hearsay Evidence

Exceptions of Hearsay Evidence

Dying Declaration

Res Gestae

Essentials of Dying Declaration

Court Proceedings

∗
The Author is a practicing Lawyer in High Court of MP, Indore, India and can be reached at
raghav_nliu@rediffmail.com.

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 Learning Objectives
Order of Evidence
Attendance of Witnesses
Who May Testify?
1. Accused and Accomplice
2. Counsel
3. Children
4. Husband and Wife

English Cases

Indian Cases

Conclusion

TABLE OF CASES

Pakala Narayan Swami v. Emperor AIR 1939 PC 47.

Muthu Kutty and Anr. Vs. State of

AIR 2004 SC
Tamil Nadu

State of Punjab v. Parveen Kumar (2004) SCC

State of Maharashtra v. Sanjay AIR 2004 SC
Pramod

Suresh v. The State AIR 2004 DEL.

Laxman v. State of Maharashtra (2002) 6 SCC 710.

Rambai v. State of Chhattisgarh (2002) 8 SCC 33

Panchdeo Singh v. State of Bihar AIR 2002 SC 526.

Smt. Laxmi v. Om Prakash and AIR 2001 SC 2383.

others

Gulam Hussain v.State of Delhi 2000 Cr.L.J. 3949.

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Paras Yadav and others v. State of
(1999) Cr.L.J 1122.
Bihar

Smt. Paniben v. State of Gujarat AIR 1992 SC 1817

A report published in “The Hindu”, a NEW DELHI, OCT 19, 2004

National daily in India.
Seattle case: As reported in a Seattle, 2004.
newspaper in Seattle named as “Free
Press”.
Another English case: As reported in England, 2004.
“The Daily Mirror”, a newspaper .
Tennessee v. Street, (1985) 471 U.S. 409.

Shepard v. United States (1933) 290 U.S. 96.

INTRODUCTION

In this paper an attempt is made to track the important developments in the law
relating to dying declarations. I would like to submit that for the purposes of this
paper I have concentrated specifically on Sub-Section 1 of 32 of the Indian
Evidence Act, 1872 and have not dealt with the entire law relating to admissibility
of statements made by persons who cannot be called as witnesses as encoded
under Sections 32 and 33.

Section 32 (1) of Indian Evidence Act, 1872 reads as follows:

“Statements, written or verbal, of relevant facts made by a person who is dead

are themselves relevant when the statement is made by a person as to the cause
of his death, or as to any f the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person’s death comes into
question.”

The principle on which dying declaration is admitted in evidence is

indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not
meet his maker with a lie in his mouth." The situation in which a person is on
deathbed is so solemn and serene when he is dying that the grave position in
which he is placed, is the reason in law to accept veracity of his statement.

The law relating to dying declarations is currently encoded under Sections

32 and 33 of the Indian Evidence Act, 1872. the logic behind allowing dying
declarations is that the character of the statement and the subject to which it
refers indicate that it is reasonable to expect the highest degree of truth possible

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in the circumstances and the incentive or desire to falsify the statement is
practically non-existence.

In cases of homicide, those statements which are made in extremis,

charging some other person or persons with the murder, but only when the
person making them is conscious of his danger and has given up all hopes of
recovery.

These declarations, contrary to the general rule that hearsay is not

evidence, are constantly received. The principle of this exception is founded
partly on the situation of the dying person, which is considered to be as powerful
over his conscience as the obligation of an oath, and partly on the supposed
absence of interest on the verge of the next world, which dispenses with a
necessity of a cross-examination. But before such declarations can be admitted
in evidence against a prisoner, it must be satisfactorily proved that the deceased,
at the time of making them, was conscious of his danger and had given up all
hopes of recovery.

They are admissible only in cases of homicide, where the death of the
deceased is the subject of the charge and the circumstances of the death are the
subject of the dying declarations.

The declarant must not have been incapable of a religious sense of

accountability to his Maker; if it appears that such religious sense was wanting,
whether it arose from infidelity, imbecility or tender age, the declarations are
inadmissible.

HISTORY OF DYING DECLARATIONS

Though the earliest incident of admission of dying declaration can be found as far
back as 1202.1 The rule has been concretized only after the decision in R v.
Pembroki2. Originally at common law, the rule was applied to civil cases as well,
but after 1836 the application of this rule in England was restricted to cases of
homicide. However, this position of English law was not applied in India and
hence under the Evidence Act dying declarations are equally permissible in
criminal and civil cases.

That thinking is as archaic as the medieval English courts where the

principle of Nemo moriturus praesumitur mentiri—a dying person is not
presumed to lie—originated. During the 12th-century reign of Richard the
Lionhearted, when Christianity infused daily life, courts may have been justified in
assuming that murder victims would be afraid to risk God's wrath by uttering false
last words. In a secularized modern America, however, as Charles W. Quick
noted in a classic article on dying declarations, "Anger, wish for revenge, and
plain ‘cussedness' persists in many individuals until their last breath.... The desire

1
See M.N. Howard, “Phipson on Evidence”, 15th edn., Sweet & Maxwell, 2000 at Pg. 886.
2
(1678) 6 How. St. Tr. 1333.

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to justify one's own actions, to have the approbation of one's friends, moreover,
may lead to conscious or unconscious falsification even in extremis."

HEARSAY EVIDENCE
Hearsay testimony is secondhand evidence; it is not what the witness knows
personally, but what someone else told him or her. Scuttlebutt is an example of
hearsay. In general, hearsay may not be admitted in evidence, but there are
exceptions. For instance, if the accused is charged with uttering certain words, a
witness is permitted to testify that he or she heard the accused speak them.

TWO EXCEPTIONS to the rules for hearsay evidence: dying declarations and
res gestae.

Dying declarations
Dying declarations of a victim that relate to facts surrounding the act that caused
his or her dying condition are excepted from the hearsay rule. Such declarations
are admissible in homicide cases. To be admissible as a dying declaration, the
declaration must have been made while the victim was at the end of life
(extremity) or under a sense of impending death and without hope of recovery.
In most jurisdictions, if the statement is to be introduced at a trial for criminal
homicide, the person making the declaration must actually have died.

If that person did not die, he or she would, of course, appear as a witness.
A transcript of oral evidence of the dying declaration of the victim is admissible
and may be repeated in court provided it is shown that the person knew that he
was dying when the declaration was made, that the statement pertained to his
own homicide, and that he was competent to testify. In the trial of A for murder,
for example, the statement the deceased made, a few minutes before his death,
that A shot him will be held admissible.

Res Gestae
Still another exception to hearsay testimony comes under the heading of res
gestae. Res gestae are involuntary exclamations or acts made at the time the
offense was committed and are so closely connected to the main fact in issue as
to be a part of it. These utterances or acts are not planned, but are forced from
the individual by the excitement of the moment. The ground of reliability upon
which such declarations are received is their spontaneity; they are the facts
talking through the party.

Res gestae also cover matters of identification. If a man witnesses a

killing, for example, and afterwards sees the accused and, without thought,
asserts: "There's the man who did the killing," his remark would be admissible.
ESSENTIALS OF DYING DECLARATION
The Federal Rules of Evidence have relaxed the common law standards for
dying declarations and require the following conditions be met before introducing
a dying declaration into evidence:

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 Awareness of imminent death: The declarant must, at the time he made
his statement, believe that his death is imminent.

Actual death: At common law, the declarant must in fact be dead by the
time the evidence is offered. But this is not required under the Federal Rule,
although the declarant must be unavailable.

Homicide: At common law, the declaration may be used only in a

homicide case. Under the Federal Rules, dying declarations are usable in civil
suits and homicide cases, but not in non-homicide criminal cases.

Declarant is victim: At common law, declaration may be offered only in a

trial for the killing of the declarant, not the killing of someone else. The Federal
Rules no longer include this requirement.

Relating to circumstances of killing: Both at common law and under

the Federal Rules, the declaration must relate to the causes or circumstances of
the killing.

For accused: The statement may be admitted on behalf of the accused

(though usually, it is admitted against him.)

COURT PROCEEDINGS

Learning Objectives
Determine the order in which evidence is presented in court, Describe the
methods used to bring witnesses to court, and who may testify in court. Define
credibility of a witness. Explain disqualification and impeachment of a witness.
Identify the difference between depositions and affidavits.

We will now discuss some of the court procedures that one will find helpful
when preparing an investigation. A working knowledge of court proceedings will
also help if one has to appear in court.

ORDER OF EVIDENCE
Evidence is introduced first by the prosecution, then by the defense. Next, the
prosecution rebuts the defense evidence. In conclusion, the defense has its
surrebuttal. The court, in the interest of justice, may allow new evidence to be
introduced at any time before it brings in a verdict.

During the rebuttal, the prosecution may introduce evidence to explain or

contradict the evidence brought forward by the defense. The evidence of defense
witnesses may be impeached (its truth questioned), or the truthfulness of the

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prosecution witnesses may be upheld. In the surrebuttal, the defense tries to
discount the evidence brought out in the rebuttal.

Witnesses always are examined separately; no witness is allowed to be

present in court while another witness is testifying. This practice, of course, does
not apply to the accused, the trial counsel, the defense counsel, or members of
the court, should they testify. Objection to a witness on the grounds of
incompetence is made before he is sworn. The court decides whether such an
objection is valid. Similarly, when the opposing side objects, the court rules on
the admissibility of any question asked a witness.

ATTENDANCE OF WITNESSES
The attendance of witnesses is obtained by serving them a subpoena. This
method of calling witnesses applies to civilians appearing before any judicial
body appointed to inquire into the truth of a matter of general interest.

Any court-martial can require any member of the Armed Forces to appear
before it as a witness. If the witness is stationed near the location of the court (so
that travel at government expense is unnecessary), the trial counsel customarily
notifies the witness, orally or in writing, of the date and place of the trial. To
assure the attendance of the witness, his or her commanding officer should be
advised informally. If a formal notice is required, the trial counsel makes a
request to the commanding officer of the witness to ensure his or her
appearance.

If the witness is not stationed close to the location where the court-martial
will convene, the commanding officer will issue orders for travel at government
expense to the trial. If practicable, a request for the attendance of a military
witness is made in ample time to allow notice of at least 24 hours before the
court convenes.

The trial counsel is authorized to subpoena as a witness, at government

expense, a civilian in the United States or its territories and possessions, and can
compel the civilian's attendance at the trial. If practicable, a subpoena is issued
at least 24 hours before the time the witness must travel from home to comply
with the subpoena.

The trial counsel, the defense counsel, and the court-martial are given
equal opportunity to obtain witnesses. The trial counsel takes timely and
appropriate action to provide for the attendance of those witnesses who have
personal knowledge of the facts at issue in the case, both for the prosecution and
for the defense.

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WHO MAY TESTIFY?
The greater portion of the law of evidence is concerned with the rules that
gradually have grown up in the courts respecting persons who may testify, and
the manner in which their testimony may be given. Keep in mind that the sole
objective of the rules of evidence is to arrive at the truth. A witness testifies
regarding his or her knowledge of the facts as a matter of public duty, and only
with the imposition of conditions the law authorizes. An example of an
unauthorized condition would be an agreement to pay a witness additional
compensation exceeding that authorized by law for his or her testimony.

• Accused and Accomplice: The accused is allowed to testify if he or she

desires. But the accused can never be forced to testify. If the accused
elects not to take the witness stand, no comment may be made on this
fact. The Constitution provides that no one may be compelled to testify
against himself or herself.

An accomplice is always competent to testify although he or she

cannot be required to answer questions when the answers might be
incriminating. When an accused or accomplice testifies, the court, when
deciding the creditability of the testimony, will carefully consider the
evidence given.

• Counsel: The trial counsel or the counsel for the accused may testify
when his or her testimony is desired.

• Children: The admissibility of testimony from a child is governed not by

the child's age but by the child's sense and understanding of the facts and
by his or her understanding of the importance of telling the truth.

• Husband and Wife: The rules governing certain restrictions on the

testimony of husband and wife are as follows:

1. The wife or husband of an accused may testify for the accused without
restriction, but the witness may be cross-examined by the trial counsel.

2. The wife or husband of an accused may not be called to testify against the
accused without the consent of both the accused and the witness unless
the offense was committed by the accused against the witness.

3. A wife or husband may not testify to confidential communications received

from the other unless the other gives consent.
In Tennessee v. Street, (1985) 471 U.S. 409. The U.S. Supreme Court
unanimously held that the use of the accomplice’s confession was for a non-
hearsay purpose and did not implicate the Confrontation Clause of the Sixth
Amendment. The case illustrates how an out-of-court statement may be used for

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a purpose other than its truth and, thereby, escapes exclusion under the hearsay
rule or the Confrontation Clause.

In Shepard v. United States, (1933) 290 U.S. 96. Justice Cardozo,

writing for a unanimous Court, found that the statement did not qualify as a dying
declaration, because "To make out a dying declaration the declarant must have
spoken without hope of recovery and in the . . . shadow of impending death, and
the government failed to show this as to Mrs. Shepard."

In short, Justice Cardozo and the entire Court concluded that it would
not be possible for a jury to hear the statement "Dr. Shepard has poisoned me"
and to use it only to discount the likelihood of suicide while ignoring the truth of
the fact asserted. The words "[w]hen the risk of confusion is so great as to upset
the balance of advantage, the evidence goes out" are the common law version of
Federal Rule of Evidence 403. They are a reminder that articulating a non-
hearsay purpose for offering an out-of-court statement does not guarantee that
the statement will be admitted. Concerns about unfair prejudice both at common
law and under rules like FRE 403 may result in exclusion of statements. So may
the Confrontation Clause.

Dying declarations aren't always declarations at all, at least in the

traditional sense of verbal statements. Traumatized victims, often robbed of the
ability to speak, are sometimes asked to make "declarations" through a series of
nods, winks, or hand signals—physical gestures that require a lot of
interpretation from intermediaries, who typically have known the victim for no
more than a few minutes. One reason that hearsay is generally inadmissible in
the first place is that so much gets skewed or lost in translation. When words are
taken out of the equation, the risk of mistakes increases.

In Pakala Narayan Swami v. Emperor, AIR 1939 PC 47. This is a

leading and landmark case on the subject that we are dealing. In this case the
Privy Council observed thus:

“The circumstances must have some proximate relation to the actual

circumstances to prove a dying declaration.”

In Muthu Kutty and Anr. Vs. State of Tamil Nadu, AIR 2004 SC, Arijit
Pasayat and S.H. Kapadia, JJ. Observed thus:

“It is relevant to take note of Section 32 of the Indian Evidence Act, 1872 which
deals with cases in which statement of relevant fact by person who is dead or
cannot be found, etc. is relevant. The general rule is that all oral evidence must
be direct viz., if it refers to a fact which could be seen it must be the evidence of
the witness who says he saw it, if it refers to a fact which could be heard, it must
be the evidence of the witness who says he heard it, if it refers to a fact which

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could be perceived by any other sense, it must be the evidence of the witness
who says he perceived it by that sense. Similar is the case with opinion.”

These aspects are elaborated in Section 60. The eight clauses of Section 32 are
exceptions to the general rule against hearsay just stated.

Clause (1) of Section 32 makes relevant what is generally described as

dying declaration, though such an expression has not been used in any Statute.
It essentially means statements made by a person as to the cause of his death or
as to the circumstances of the transaction resulting in his death. The grounds of
admission are: firstly, necessity for the victim being generally the only principal
eye-witness to the crime, the exclusion of the statement might deflect the ends of
justice; and secondly, the sense of impending death, which creates a sanction
equal to the obligation of an oath. The 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; a situation so solemn and so lawful is
considered by the law as creating an obligation equal to that which is imposed by
a positive oath administered in a Court of justice.

In State of Punjab v. Parveen Kumar, (2004) SCC, B.P. Singh and Arun
Kumar, JJ. Observed thus:

“It is well settled that one piece of unreliable evidence cannot be

used to corroborate another piece of unreliable evidence.”

In Laxman v. State of Maharashtra, (2002) 6 SCC 710, It was observed

by a Constitution Bench of the Supreme Court that where the medical certificate
indicated that the patient was conscious, it would not be correct to say that there
was no certification as to state of mind of declarant. Moreover, state of mind was
proved by testimony of the doctor who was present when the dying declaration
was recorded.

In Rambai v. State of Chhattisgarh, (2002) 8 SCC 33, It was held that if

the person recording the dying declaration is satisfied that the declarant is in a
fit medical condition to make a dying declaration then such dying declaration
will not be invalid solely on the ground that the doctor has not certified as to the
condition of the declarant to make the dying declaration.

In Panchdeo Singh v. State of Bihar, AIR 2002 SC 526. Supreme Court

held that Whether a dying declaration can be relied upon or not without
corroboration categorically held that if there is some infirmity in the dying
declaration and the Court feels hesitant in upholding its credibility the Court ought
to look for some corroboration but if it is otherwise, the question of requirement of
corroboration would not arise.

10

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 It was held that a dying declaration which allures confidence of the Court
would be a sufficient piece of evidence to sustain conviction. The basic principle
is that a dying declaration which allures the satisfaction of the Court in regard
to its credibility and trustworthiness can be acted upon without looking for
corroboration.

In Smt. Laxmi v. Om Prakash and others, AIR 2001 SC 2383, Their

Lordship Hon'ble Mr.Justice R.C. Lahoti (now Hon'ble Chief Justice of India)
summed up the question of the admissibility and the probative value of a dying
declaration in the following words:

"One of the important tests of the reliability of the dying declaration is a finding
arrived at by the Court as to satisfaction that the deceased was in a fit state of
mind and capable of making a statement at the point of time when the dying
declaration purports to have been made and/or recorded. The statement may be
brief or longish. It is not the length of the statement but the fit state of mind of the
victim to narrate the facts of occurrence, which has relevance. If the Court finds
that the capacity of the maker of the statement to narrate the facts was impaired
or the Court entertains grave doubts whether the deceased was in a fit physical
and mental state to make the statement the Court may in the absence of
corroborative evidence lending assurance to the contents of the declaration
refuse to act on it.”

In Smt. Paniben v. State of Gujarat, AIR 1992 SC 1817, In this case the
Supreme Court has laid down in several principles governing dying declaration,
which could be summed up as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration.3

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration.4

(iii) The 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 an opportunity to observe and identify the assailants and was in a
fit state to make the declaration.5

(iv) Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence.6

3
See Munnu Raja and Anr. v. The State of Madhya Pradesh, (1976) 2 SCR 764.
4
See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. , AIR 1985 SC 416; Ramavati Devi v. State of
Bihar, AIR 1983 SC 164.
5
See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, AIR 1976 SC 1994.
6
See Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264.

11

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(v) Where the deceased was unconscious and could never make any dying
declaration the evidence with regard to it is to be rejected.7

(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction.8

(vii) Merely because a dying declaration does contain the details as to the
occurrence, it is not to be rejected.9

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On

the contrary, the shortness of the statement itself guarantees truth.10

(ix) 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 said that the deceased was in a fit and conscious state to make
the dying declaration, the medical opinion cannot prevail.11

(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.12

(xi) Where there are more than one statement in the nature of dying declaration,
one first in point of time must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable, it has to be accepted.13

7
See Kaka Singh v State of M.P., AIR 1982 SC 1021.
8
See Ram Manorath and Ors. v. State of U.P., (1981) 2 SCC 654.
9
See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617.
10
See Surajdeo Oza and Ors. v. State of Bihar, AIR 1979 SC 1505.
11
See Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR 1988 SC 912.
12
See State of U.P. v. Marian Mohan and Ors., AIR 1989 SC 1519.
13
See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839.

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CONCLUSION
AFTER A DEEP RESEARCH AND ANALYSIS PERTAINING TO THE LAW OF DYING DECLARATIONS,
I HAVE MET WITH SOME FINDINGS AND OBSERVATIONS, WHICH ARE AS UNDER:

Rather than attacking a dead person's moral fiber, defense lawyers would
be better off calling into question the reliability of a traumatized brain. In an
era of DNA analysis, courts are keener than ever to hear scientific
evidence based on laboratory studies. And medical research is fairly
unanimous in asserting that murder victims often lack the physical ability
to think or communicate rationally.

When one individual is killed by another, the victim may utter some final
words to a third party indicating the circumstances of the death, including
the purported identity of the individual who perpetrated the event. This
dying declaration, when repeated in court by the third party would
generally be inadmissible under the hearsay rule. But in contrast to other
forms of hearsay, dying declaration reported speech is admissible as
legitimate and probative evidence as to the truth of the matter asserted
through purported possession of "guarantees of trustworthiness."
However, dying declarations are not inherently more reliable than other
forms of inadmissible hearsay evidence. Court’s acceptance of these
words is based on unfounded legal assumptions that are expressed
through logical fallacies, a mistaken conception of language objectivity,
ignorance of the fundamental concepts of constructed speech, and a
western legal manifest through application of self-centered frameworks
and cosmologies. Overall, the basis of the dying declaration exception to
the hearsay rule is founded on assumptions about language that are of
questionable validity. By applying linguistic concepts to this form of
speech, it would appear that the "guarantee of trustworthiness" rationale
of the exception is, upon analysis, neither guaranteed nor trustworthy.

It would be too cynical to dismiss entirely the usefulness of dying

declarations, which have helped to ensnare many murderers who might
otherwise have escaped justice.

After eight centuries as a cornerstone of common law, the dying

declaration exception seldom causes a stir among reformers, despite the
ongoing judicial abuses. No legal organization is currently pushing for new
evidentiary rules that would diminish the exception's use. Nor have legal
scholars exhibited much interest in debating the issue; Quick's 1960
Howard Law Review article remains the definitive work. But that doesn't
mean defense attorneys and reformers should resign themselves to a
conviction every time a client is fingered by a victim's last words. Over the
past decade, scientists have chipped away at such long-accepted
lynchpins of criminal law as fingerprints and handwriting analysis,
exposing these brands of evidence as rooted in unreliable folklore. Now
they're beginning to cast an equally skeptical eye on dying declarations.

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