What is the difference between English and
Indian Law?
This article is written by Ist-year student, Symbiosis Law School, Noida. She has
discussed the concepts of dying declaration in detail.
Introductionng Declaration is a statement made by a declarant as to the cause of his death or who died
explaining the cause of his death. If the person making the dying statement is likely to live, his,
statement is inadmissible as a dying statement, but if examined, it could be relied on under Section 158
of the Indian Evidence Act, 1872 to corroborate his testimony. It is dealt under Clause (1) of Section
32 of the Indian Evidence Act 1872.
Iustration
X was raped and received injuries due to it, X dies of injuries received. The question is whether Y
raped or killed X. Under such circumstances, a suit will lie against Y by the family of X. Relevant facts
are in X’s statement about her death, the murder and the rape, and the wrong to be acted upon.
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Who is dead?
Where a witness who is alive is not produced, the previous statement by him in the previous
proceeding cannot be admissible in evidence as happened in Raj Bali v Deputy Directorf1]. A dying
declaration is admissible in evidence if the declarant dies. If the declarant survives it is not admissible
in evidence.
What happens if the declarant survives?
‘The question arises when the declaration of dying is recorded and the declarant does not die, The
statement is converted into a dying statement only when the victim/declarant dies. If the declarant does
not die, the declarant can be used against the accused as a witness in court. It is said that the dying
statement is only recorded on the presumption that the declarant is about to die. But if the declarant
does not die then the statement cannot be admissible as a dying statement.
English Law Indian LawIt is admissible only on a criminal charge of homicide | It is admissible in all proceedings, civil
or manslaughter. or criminal
‘The declarant should have been in real danger of death | ‘The dying statement is relevant whether
for his admissibility at the time they were made, and__| the person making it was or was not
that he should have had full apprehension of this danger | under the expectation of death at the
and the death should have followed. time of the declaration,
Who can record the dying statements?
The best form of declaration of dying would be the one recorded by the Magistrate,
«However, according to the Supreme Court’s guidelines, anyone can record the dying
statement,
* A dying statement can also be recorded by public servants, or by a doctor as well, where the
victim is hospitalized and is badly burned or injured and wants to make a statement, the
doctor can also record the same statement and take note of that statement. A person with
100 per cent burns can make a statement, and a doctor’s certificate is not a precedent for
relying on a dying statement.
+ Itcan also be made for a relative or family member and in the eyes of the law, the same
plays an admissible role.
+ Courts discourage police officers from recording the dying statement, but if there is no
other person to record it, the courts also consider the dying statements written by police
officers.
«If the statements are not recorded by the magistrate then, in that case, to make them
admissible, it is better to take the signatures of the witnesses present at the time of recording
the dying statement. It is important that he must be in a sound state of mind when the
declarant gives the statement.
Learn Criminal Law
NO
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CLICK ABOVEWhat is the relevance of a Dying Declaration?
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If the deceased is not proved to have died as a result of injuries received by him in the accident in
which the deceased is alleged to have been killed, his statement relating to that incident cannot be said
to be the statement as to the cause of his death or as to any of the circumstances of the transaction that
resulted in his death. In a case where the cause of the death of that person is called into question, a
dying statement becomes relevant.
Which type of dying declaration is not
admissible?
An omnibus statement made by a group of persons including deceased to the witness cannot be
accepted as a piece of dying declaration, The statement of the deceased containing a reference to the
motive of the accused is not admissible. The potion of the dying declaration made by one deceased
person as to the cause of death of another deceased person is outside the scope of Section 32(1) and
consequently inadmissible in evidence.
What are the grounds of admitting dying
declaration?
‘The main reasons for admitting the dying statement are:
+ The death of the declarant.
+ The victim, who is the only eyewitness of the crime, would tend to defeat the extremes of
justice by excluding his statement, and
+ An imminent sense of death, which creates a punishment equal to the obligation of an oath.
The principle upon which death statements are accepted is that they are statements made under extreme
conditions.
What are the methods to prove a dying
declaration?
1, Statements relating to the declaration of death, whether oral or written, must be duly
proved.
2. If the declaration is oral, the person who heard the declaration should record what was
heard in writing.
3. If the declaration is written, evidence from the person who recorded the declaration must be
proved.4, Ifa judge makes the death declaration beforehand, the judge must be called to prove it. In
the case of a death statement made to a magistrate, Article 80 of the Indian Evidence Act of
1872 does not apply.
5. A dying declaration must be corroborated by other necessary document or evidence.
Can conviction be solely based on dying
declaration?
In Ramnath v State[2], the Supreme Court observed that the conviction of an accused is not safe
without further corroboration solely on the evidence provided in the dying statement, as such a
statement is not subjected to oath and cross-examination, and as the person making such a declaration
may be physically as well as mentally confused at that time and may draw upon his imagination while
making the statement,
However, In this ease, those observations of their Lordships were found to be * obiter dicta * by nature
and the following guidelines are laid down in Khushal Rao c. Bombay[3).
1, A dying declaration can not constitute the sole basis for conviction as an absolute rule of
law unless this is confirmed.
2. It has to be established on its own facts, taking into consideration the circumstances of the
death declaration,
3. As a general proposition, it can not be stated that a dying statement is a weaker kind of
evidence than other evidence
4, The dying statement shall be based on the same basis as other evidence and shall be judged
on the basis of the circumstances surrounding it and the principles governing the assessment
of the evidence.
5. A dying statement written by a competent judge, that is in the proper manner, in the
questions and answers form, as far as possible, according to the declarant’s maker, is much
more relevant than the dying statement, which may be affected by all the infirmities of the
‘human memory and character, depending on oral witness
6. In order to test the reliability of a dying statement, the court must consider several
circumstances, such as the dying man’s opportunity for observation, etc. Therefore, in order
to pass the reliability test, a dying statement must be subjected to very close scrutiny,
bearing in mind that the statement was in the absence of the accused, who had no
opportunity to test the veracity of the statement by cross-examination, But once the court
has concluded that the dying statement was the truthful version of the victim's death
circumstances and assailants, there is no further question of further corroboration. On the
other hand, after examining the death statement in all its aspects and testing its veracity, the
Court has concluded itself that it is not reliable by itself and that it suffers from infirmities,
then it can not form the basis without corroboration of a conviction. The need for
corroboration is not the inherent weakness of a death statement as evidence, but the fact that
the court concluded, in a particular case, that a dying statement was not free of the above-
noted infirmities or other infirmities that could be disclosed in evidence in this case.
When does dying declaration not require
further corroboration?Once the court has concluded that the dying statement was the true version of the death circumstances
and the victim’s assailants, there is no question of further corroboration: Khushal Rao v State of
Bombay.
When there are more than one dying declarations?
In the case of two conflicting death statements, one recorded by a doctor in the presence of two or
‘more doctors and the other recorded by a person certified by Sarpanch, the second not proven by a
competent witness cannot be relied on; Harbans Lal v State of Haryana.[4]
Where more than one death declaration is present and inconsistent, it is not possible to select one such
declaration, in which the accused participates and the conviction is based on that death declaration
alone.; Kamla v State of Punjab.[5]
What is the difference between a dying
declaration and a dying deposition?
Dying Declaration Dying Deposition
Its a statement made by a deceased person to Ithas to be made before a Magistrate and in
anybody who happens to be present when it is made. | the presence of the accused.
It is not made on oath. It must be made on oath and before a
person authorised by law to take evidence.
It is subject to cross-examination. Itis subject to cross-examination.
It is weaker than dying deposition. Itis stronger than a dying declaration,
Landmark Cases
«Inthe case of Uka Ram v State of Rajasthan{6J, the Court held that, in the event that the
cause of his action is questionable, a person’s statement of the cause of his death or of any
circumstances of transaction that led to his death is admissible as evidence, the statement in
law is categorically called the dying declaration.
+ In Chirra Shivraj v State of Andhra Pradesh{7], the Court held that relying on the dying
declaration is an extremely dangerous mechanical approach simply because it is there. The
court shall examine the death declaration scrumptiously with a microscopic eye, to find out
if it is voluntary, genuine, made in the conscious state of mind and without being
influenced, and if such condition is fulfilled, the court held that the order of a conviction
cannot be declared on the basis of sale of the dying declaration.
* In Sudhakar v State of Madhya Pradesh{8], the Apex Court held that the court should
ensure that the declaration is not a tutoring or encouraging statement or an imagination
product. The court has to find out from the proof recorded that the deceased had aof mind and a good chance to sce and identify the perpetrator. The court normally relies on
the medical evidence for concluding whether the dying person is in a fit state of mind, but if
the person who records the statement states that the deceased is fit and conscious, the
medical opinion is not dominant and it can neither be said that because a doctor does not
have a certificate of fitness of mind of the declarant, the dying declaration is not acceptable.
What is essential is that the person recording the death statement must be convinced of the
fitness of the deceased. If the Magistrate's testimony shows that the declarant was fit to
make the statements without the doctors opinion, action can be taken if ultimately, the
Court considers it voluntary and true.
* In Uttar Pradesh v Madan Mohan{9J, the court stated that it was for the court to see that
the dying statement inspired complete confidence since the manufacturer of the dying
statement was not available for cross-examination, the court should be satisfied that there
‘was no possibility of tutoring or prompting, the doctor’s certificate should state that the
victim was in a fit state of mind, Magistrate recording his own satisfaction with the
declarant’s fit mental condition was not acceptable especially if the doctor was unavailable,
the Magistrate, police officer and executive should record the dying statement only if the
deceased's condition was so precarious that no other option left.
+ In Kusa v. State of Orissa/10}, the Supreme Court held that a death declaration would be
unreliable if a deceased fails to complete the main sentence. But if he tells the whole story
without replying to the last formal question as to what he wanted to say more, the statement
could be relied on.
Conclusion
After seeing the various opinions of the court, it is clear that certain guidelines must be followed when
recording the declaration of death. The court has the power to reject the dying declaration on the
grounds of the validity of the records by considering it as an unreliable source of evidence. It is clear
from the above-mentioned cases that the dying declaration may be in form, but it must be carefully and
duly proven that the courts make it admissible as the’ Dying Declaration.
Endnotes
AIR 1972 All 291
1953 S.C. 420
AIR 1958 $.C.22
AIR 1993 SC 819
AIR 1993 SC 374
[2001] 5 SCC 254
[2010] 14 SCC 444
[2012] 7 scc 569
AIR 1989 SC 1519
[1980] 2 Scc 207
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