UNIT 9

Section 32 of the Indian Evidence Act deals with statement of relevant fact, which may be
either in written form or said verbally by a person:

 who is dead.
 who cannot be found.
 who is incapable of giving evidence.
 whose attendance cannot be procured without an amount of delay or expense which
under the circumstance appears unreasonable to the court.
Sub-section (1) of section 32 of the Evidence Act provides that when the statement is made
by a person as to the cause of his death or as to any circumstances of the transaction which
resulted in his death, being relevant fact, is admissible in evidence. Such statements are
commonly known as dying declaration.
A dying declaration made by a person who is dead as to the cause of his death or as to any of
the circumstances of the transaction which resulted in his death. In cases in which the cause
of his death comes into question is relevant under section 32 of the Indian Evidence Act and
is also admissible in evidence.
It is to be noted that the dying declaration is indirect evidence, so it is an exception to the rule
against the admissibility of hearsay evidence.

Elements of Dying Declaration

The elements of dying declaration are illustrated under section 32(1) of the Indian Evidence
Act. According to section 32(1) of the Indian Evidence Act, dying declaration is a statement:

 Written or verbal,
 Of relevant facts,
 Made by a person who is dead.

Such statement is relevant when the statement is made by the person as to:

 The cause of his death.

 Any circumstance of the transaction that resulted in his death.

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.
 Whatever may be the nature of the proceeding in which the cause of death comes into
question.
Dying Declaration Under English Law
In English law, dying declaration is relevant, but two conditions are required:
(i) the person must be in expectation of death.
(ii) the nature of the proceeding must be criminal, and the accused is charged with murder or
culpable homicide.

Evidentiary Value of Dying Declaration

The dying declaration is admitted on the principle of “Nemo moriturns proesumitur
mentiri” which means a man will not meet his maker with a lie in his mouth.
A dying declaration is substantive evidence and can be the sole ground of judgement. The
probative force of the dying declaration depends on the facts and circumstances of each case.
If the court finds it is true and voluntary, further corroboration may not be required. But when
required and necessary, it may be corroborated with other independent evidence.

To Whom Dying Declaration be Made?

Section 32(1) of the Indian Evidence Act doesn’t specify as to whom the dying declaration
can be made. A dying declaration can be made to anyone. It may be a friend, relative and
even stranger. It is to be noted that a dying declaration made to a magistrate will have high
probative force as compared to a dying declaration made to a stranger.

Dying Declaration by Signs

In Queen Empress vs Abdullah, the woman’s throat was slit, due to which she was unable to
speak. She suggested the name of the accused by sign. It was held that questions and signs
taken together might be regarded as a verbal statement made by a person as to the cause of
his death within the meaning of section 32 of the Indian Evidence Act, 1872.

FIR as Dying Declaration

In Mahmood Illahi vs State of Uttar Pradesh (1990), the court held that a report made by the
deceased regarding the cause of his death or the circumstances that caused his death to the
police officer shall be relevant under section 32(1) of the Indian Evidence Act, 1872.

Essentials of a dying declaration:

 Dying declaration must relate to cause of his death only or refer to
circumstances/transaction which caused his death.
  The person making the statement i.e., the declarant must be found dead after making
of the statement. If such person doesn’t die the statement fails to fall under the
category of dying declaration and it might rather be treated as a statement u/s 154
Cr.PC and 161 Cr.PC.
 There must be proximity of time in making of the statement and time of death. This is
very important while deciding whether the statement is covered under this category or
not.
 The declarant must be mentally fit i.e., conscious oriented, fully aware and able to
understand the aftermath of making his statement, while giving the statement. It isn’t
always necessary that the fact of mental fitness be certified by the doctor, however if
there is a medical certificate to that effect it proves to be more effective and efficient.
 Dying declaration can be made to any person: a doctor, a magistrate, police personnel,
friend or any other person. However, if it is recorded by a Magistrate, that accords
more reliability and authenticity.
 The statement must be complete and not vague. An incomplete statement will always
leave a loophole and has more chances of being tampered thus, an incomplete
statement will not be relevant.
 The declarant must be competent as a witness i.e., he must be capable of being a
witness if he weren’t dead. (To see competency of a witness, refer Section 118 of the
Indian Evidence Act)
 It is not necessary that the declarant is under the expectation of death while giving the
statement.

Recording Dying Declaration:

Anyone can record the dying declaration of the deceased as per law. However, a dying
declaration recorded by a Judicial or Executive Magistrate will add an additional strength to
the prosecution case.
A dying declaration may in several cases be the “primary piece of evidence to prove the
genesis of occurrence”.
The only requirement for such a declaration to be held perfectly accountable in court is for
the victim to volunteer the statement and be of conscious mind.
The person who records the dying declaration must be satisfied that the victim is in a fit state
of mind.

Situations Where Court Does Not Accept it as a Evidence:

Though a dying declaration is entitled to great weight, the accused has no power of cross-
examination.
This is the reason the courts have always insisted that the dying declaration be of such a
nature as to inspire full confidence of the court in its correctness.
The courts are on guard to check if the statement of the deceased was a result of either
tutoring, prompting or a product of imagination.

Need of Corroboration (Supporting Evidence):

Several judgments have noted that it is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
If the court is satisfied that the dying declaration is true and voluntary it can base conviction
on it, without corroboration.
Where a dying declaration is suspicious, it should not be acted upon without corroborative
evidence because a dying declaration does not contain the details as to the occurrence.
It is not to be rejected, equally merely because it is a brief statement. On the contrary, the
shortness of the statement itself guarantees truth.

Validity of Medical Opinion:

Normally the court, in order to satisfy whether the deceased was in a fit mental condition to
make the dying declaration, can look up 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.

Other points to be remember:

 The concept of dying declaration is based on the maxim Nemo moriturus presumuntur
mentri which means ‘no one who is on the death bed is presumed to lie’.
 Dying declaration must be voluntary.
 The person to whom a declaration/statement is made or who records such statement is
known as a scribe.
 As of general rule, hearsay evidence is inadmissible under the Evidence Act. Dying
declaration is an exception to the hearsay rule.
 There is no rule of law which says that no conviction can be solely based on the basis
of dying declaration unless it is corroborated with independent evidence. Thus, where
a statement is complete and reliable to the satisfaction of the Courts, the Courts can
convict a person on the basis of a Dying declaration.
 The courts must act with caution while relying on a dying declaration as such
statement is not direct but coming from a person who has either heard or written it,
therefore there are odds of filtration/manipulation in the statement.
 Dying declaration helps securing conviction in cases like dowry deaths, etc. where
direct evidence isn’t available.
 The statement must be explanatory as to the cause of declarant’s death.
 Such statement is admissible in both criminal and civil proceedings.
 A suicide note is an example of dying declaration.
 Signature of declarant isn’t mandatory on the declaration. But it is better to reduce the
statement into writing and get it signed by the declarant as this reduces the likelihood
of unnecessary exaggerations.
 Where there are more dying declarations than one, it is the duty of the Court to
analyse and scrutinise on which of the declarations it should rely and on which it
should not.