Dying Declaration

I. Meaning:
“Truth sits upon the lips of a dying man.”
• The concept of a dying declaration is explored in Section 32(1) of the Indian Evidence
Act, of 1872.
• Section-32(1) of Indian Evidence Act, 1872, defines dying declaration as a statement
written or verbal of relevant facts made by a person, who is dead. It is the statement of
a person who had died explaining the circumstances of his death.
• Article 32 focuses on cases involving people who are either missing or dead.
• “Leterm Mortem” is the term for a death declaration. ”Words said before death” is what
the phrase “Leterm Mortem” means.
In Emperor vs Abdullah, it was held that conduct must be relevant, just as the dying declaration.
Also, it is a well-known fact that a statement may be oral or written. So, this statement must relate
to:
o Cause of death
o Circumstances of the transaction
o Resulted in the death

II. Object

The main object behind the Dying Declaration, in a nutshell, is:- It is a presumption that ”A person
who is about to die would not lie”. It is also said that ”Truth sits on the lips of a person who is
about to die”. The victim is an exclusive eyewitness and hence such evidence should not be
excluded.
III. Who may record a dying declaration?

1. It is best that it is recorded by the magistrate.

2. If there is no time to call the magistrate, keeping in view the deteriorating condition of the
declaration, it can be recorded by anybody e.g. public servant like a doctor or any other person.
3. It cannot be said that a dying declaration recorded by a police officer is always invalid.
4. If any dying declaration is not recorded by the competent Magistrate, it is better the signatures of
the witnesses are taken who are present at the time of recording it.

❖ Important facts to be remembered before recording Dying Declaration:

i. The declaring was in a fit condition of mind to give the statement when the recording was
started and remained in a fit condition of mind until the recording of the dying declaration
is completed.
ii. The fact of the fit condition of mind of declaring can be best certified by the doctor.
iii. Yet, in cases where it was not possible to take fitness from the doctor, the dying declaration
has retained its full sanctity if there are other witnesses to testify that declaring was in a fit
condition of the mind which did not prevent him from making the dying declaration.
iv. However, it should not be under the influence of anybody or prepared by prompting,
tutoring or imagination. If any dying declaration becomes suspicious, it will need
corroboration. If a declarant made more than one dying declarations and if these are not at
variance with each other in essence they retain their full value. If these declarations are
inconsistency or contradictory, such dying declarations lose their value.
IV. Types of dying declaration

No particular type is specified concerning the dying declaration. It can be oral, written, gestures &
signs, thumb impression or even incomplete or can also be in the form of a question answer.
However, there must be a distinct & definite assertion on the person's part who produces the
statement. Also probably the declaration should be written in the exact words stated by the person
who produces the statement. But remember that when a magistrate records the dying declaration,
it should be in Question-Answer form as the magistrate would want accurate answers, as in certain
cases, it becomes the sole basis of conviction.

i. Gesture and Signs

o In Queen-Empress v. Abdullah (1885), the appellant was charged with the offence of
murder before the court of session wherein the appellant cut the throat of the victim, after
which she was unable to speak but was conscious & could make gestures and signs. The
magistrate uttered several names one by one asking if they had wounded her, to which the
victim moved her hand forward and backwards and made signs. This is how the magistrate
recorded the dying declaration & the same was accepted as evidence. Similarly, in the
recent
o In Mukesh & Ors. v. State of NCT of Delhi (2012), that is, the “Nirbhaya Gang Rape
Case,” the victim made a dying declaration in the form of a sign and gesture, which was
recorded. The first declaration was recorded by the doctor when she was admitted and the
second by the sub-divisional magistrate (SDM) during which she made the exact
statements of such mishappenings. Then, the third declaration was recorded by the
metropolitan magistrate on December 25, mostly by gestures. The bench said that as far as
the third dying declaration is concerned, this court has already held that the dying
declaration made through signs, gestures or nods is admissible as evidence.

ii. Oral and written

An oral dying declaration is admissible as evidence in a court of law as it is an exception to the

general rule of hearsay evidence which is no evidence in the eyes of the law.

o In Amar Singh v. State Of Rajasthan (2010), the deceased’s mother and brother provided
evidence, that the deceased made the statement a month before the suicide stating that the
appellant, her husband used to taunt the deceased, saying that she had come from a hunger
house and demanded money. It was held that the dying declaration is admissible, and the
appellant can be convicted under section 304B and 498A of IPC.
o In Pakala Narain Swamy v. Emperor (1939). Lord Atkin ruled that “the circumstances
of the transaction which resulted in the death of the declarant will be admissible if such
transaction has some proximate effect”.

iii. Incomplete Dying Declaration

When a person makes a dying declaration which is found to be incomplete will not be admissible
as evidence in a court of law. When the deceased's condition is very serious & at his/ her own
 request, a statement is made by him/ her in doctor’s presence which was later taken by the police,
however, could not be completed due to the reason that the deceased fell into an unrecoverable
coma. Then, in such a case the dying declaration will not be admissible.

Now, if the statement is incomplete but delivers the declarant all mandatory information or what
he wanted to state when stated as complete in respect of some fact, then the statement would not
be excluded because it is incomplete.

V. Exceptions To Dying Declaration

The exceptions of ‘Dying declaration’ stipulate, where the statements made by dying persons are
not admissible:

1. If the cause of death of the deceased is not in question: If the deceased made statement before
his death anything except the cause of his death, that declaration is not admissible in evidence.
2. If the declarer is not a competent witness: Declarer must be a competent witness. A dying
declaration of a child is inadmissible. In Amar Singh v. State of Madhya Pradesh,1996 Cr LJ (MP)
1582, it is held that without proof of mental or physical fitness, the dying declaration is not reliable.
3. Inconsistent declaration: Inconsistent dying declaration has no evidential value.
4. Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996): The injured died 7-8
hours after the incident, four dying declarations were recorded but none carried a medical
certificate. There were other doubtful features too, so it is not acted upon.
5. Influenced declaration: It must be noted that a dying declaration should not be under the influence
of anyone.
6. Untrue declaration: It is perfectly permissible to reject a part of a dying declaration if it is found
to be untrue and if it can be separated.
7. Incomplete declaration: Incomplete declarations are not admissible.
8. If the statement relates to the death of another person: If a statement made by the deceased
does not relate to his death, but to the death of another person, it is not relevant.
9. Contradictory statements: If a declarant made more than one dying declaration and all are
contradictory, then all declarations lose their value.
10. Unsound person: The statement of unsound mind can not be relied upon.
11. If a dying declaration is not according to the prosecution: If a dying declaration is inconsistent
with the case of prosecution it is not admissible.

VI. Who May Record Dying Declaration?

i. Keeping in mind the deteriorating condition of the declarant, it can be recorded by anybody
e.g. public servants like a doctor or any other person.
ii. It cannot be said that a dying declaration recorded by a police officer is always invalid.
iii. If any dying declaration is not recorded by the competent Magistrate, it is better that
signature of the witnesses are taken who are present at the time of recording it.
❖ Condition Precedents For Admissibility Of Dying Declaration:
i. The declarant who gave the dying declaration should die.
 ii. The dying declaration must be complete.
iii. It must be voluntary and uninfluenced.
iv. The cause of death must be explained by the declarant or at least the circumstances which
resulted in his death must be explained.
v. The declarant who makes the dying declaration, must be conscious and coherent.
vi. The declarant must be of sound state in mind.
vii. The cause of death of the declarant must be in question.

Can conviction be based solely on it:

Under Indian laws the accused's conviction can be solely based on a dying declaration. It’s
also important proof towards the accused, and a conviction can be based solely on a dying
declaration.

Initially

In the case of Ram Nath v. State of Madhya Pradesh (AIR 1953 SC 420), The
Supreme Court took a stringent stand that it is settled law that it is not safe to convict an
accused person merely on the evidence of a dying declaration without further
corroboration because such a statement is not made on oath and is not subject to cross-
examination, and because the maker of it might be mentally or physically in a state of
compassion and might be drawing upon his imagination while he was making it. As a
result, the Supreme Court has placed a perk on confirmation of the dying pronouncement
before it is acted upon as a protection.

Further in the case of State of U. P. v. Ram Sagar Yadav (1985 AIR 416), the
Supreme Court stated, the first effort of the court is to determine if the deathbed
declaration is true and if it is, there is no need for corroboration. Only if the circumstances
surrounding the dying declaration are not obvious or persuasive will the court look for
corroboration of the dying declaration.

In Sham Shankar v. State of Maharashtra, the Apex Court substantiated on the credibility
concern of dying declaration observing that it is important to emphasize that the accused
is devoid of right to cross-examination which is necessary for eliciting the truth.

With due course of time as the societal problems changed and there were sensitive
cases of dowry death, acid attacks, rapes etc.

i. In Bhagwan Tukaram v. State of Maharashtra (AIR 2014 SC 270) held that a

dying declaration becomes relevant on the basis of necessity and is accepted as an
exception to hearsay evidence in order to meet ends of justice and therefore it need not be
corroborated before it is acted upon.
ii. The Supreme Court in the case of Umkant v. State of Chhattisgarh, (AIR 2014 SC
2943) held that dying declaration does not require any corroboration as long as it inspires
confidence in the mind of the Court and it is free from any form of tutoring.
iii. Khushal Rao v. State of Bombay observed the evidentiary value of dying declaration and
thereby clarifying the following-
 1. Conviction can be based only on a dying declaration. A true and voluntary declaration
requires no confirmation because the possibility of death guarantees the truth of the
statement made.
2. A dying declaration is not less reliable than any other type of evidence. Each case must
be decided on its own facts, taking into account the circumstances surrounding the dying
declaration.
3. To determine the reliability of a dying declaration, the court must consider factors such as
the dying man's ability to be observed.
4. The Court must be convinced that there was no component of tutoring, that the deceased
was in a sound mental state, and that the statement was not fabricated.

iv. It is here important to note the Apex Court’s statement on dying declaration in the case
of Muthhu Kutty v. State, (AIR 2005 SC 1473), that if dying declaration is found
to be true and voluntary, it can be made the basis of conviction without any further
corroboration considering corroboration is merely a rule of prudence.
v. In Kalawati v. State of Maharashtra, Justice Arjit Pasayat substantially elaborated
on the corroboration aspect of dying declaration as following:

1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon
without corroboration.
2. If the court is satisfied that the dying declaration is true and voluntary it can base a
conviction based on it without corroboration.
3. Court has to scrutinise 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 a
declaration.
4. Where the dying declaration is suspicious it should not be acted upon without
corroborative evidence,
5. Where the disease was unconscious and could never make any dying declaration, the
evidence with regards to it is to be rejected
6. A dying declaration with suffers from infirmity cannot form the basis of conviction
7. Merely because a dying declaration does contain the details as to the occurrence, it is not
to be rejected.

vi. Purshottam Chopra v. State (Govt. Of Delhi)

In the Purshottam Case, the concepts enunciated in several precedents have been summarised in
the following for accepting dying declaration of 99% burnt injury persons-

1. If a dying declaration encourages the Court's confidence, it could be the sole ground for
conviction without corroboration.
2. If a dying declaration is dubious, such as the declarant's lack of mental capacity or
something equivalent, it should not be relied on without supporting evidence.
3. The person recording a dying declaration must be satisfied that the declarant is of sound
mind and competent of making the statement.
4. The percentage and degree of burns would not be determinative of the authenticity of a
dying declaration; rather, the quality of evidence about the declarant's competent and
cognizant state to make the statement would be decisive.