Dying Declaration

1

INTRODUCTION Dying declaration is bases on the maxim “Nemo moriturus praesumitur mentire" i.e. a man will not meet his maker with a lie in his mouth. The statement made by a person as to the cause of his death or as to circumstances of the transaction resulting in his death is called a dying declaration. Section 32 ss(1) of the Indian Evidence Act talks about dying declaration. 1 A dying declaration is admissible in evidence even though it has not been given on oath and the person making it cannot be cross-examined. It is an exception to the rule against hearsay. Indian law recognizes the fact that ‘a dying man seldom lies’. Or ‘truth sits upon the lips of a dying man’. Section 32(1) of the Indian Evidence Act, 1872 explore the concept of dying declaration. Section 32 deals with the cases related to that person who is dead or who cannot be found. A dying declaration is called as ''Leterm Mortem''. The word ''Leterm Mortem'' means ''Words said before death''. Admissibility of a dying declaration as a relevant piece of evidence is guided by the principle of necessity and religious belief of the olden days. The necessity being, that in cases, where victim is the only eye-witness to the crime, the exclusion of his/her statement might defeat the ends of justice. The religious sanction behind their admissibility comes from the belief in the fact, that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath-nemo moriturus A dying declaration is usually introduced by the prosecution, but can be used on behalf of accused as well. Recording of dying declaration is very important task. Utmost care is required to take while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind its essential ingredients, such declaration retains its full value.

1

S. 32 of the Indian Evidence Act provides that a statement by a person since deceased, as to the cause of his

death or an of the circumstances of the transaction that resulted into his death is relevant, irrespective of the proceedings in which the cause of his death is comes into question.

2

OBJECT 

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 exclusive eye witness and hence such evidence should not be excluded. 2

SCOPE OF DYING DECLARATION 

It is a statement written or oral of a person who is dead, with respect to the cause of his death or the circumstances resulting in his death. The statement is relevant in any judicial proceedings where the cause of death of that person is in issue. The second part of section 32(1) makes it abundantly clear that the statement is admissible in civil as well as criminal proceedings and it is not necessary that the person making the statement should be apprehending death at the time of making the statement. Thus, it may be noted that, the Indian law as to admissibility of dying declaration makes a departure from the English law In as much as it is not limited to the cases of homicide and the restriction of expectation of death has not been recognized. Thus, the basis which has been considered to have taken the place of Oath and ensuring the truthfulness of the statement has not been made a condition for its admissibility.



The court is under an obligation to closely scrutinize all the pros and cons of the circumstances while valuating a dying declaration since it is not a statement made on oath and is not tested on the touch stone of cross- examination.



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 the declaration. Thus, the Supreme Court has laid a stress, as a safeguard, on corroboration of the dying declaration before it is acted upon. 3

2

P.V. Radhakrishna v. State of Karnataka, Criminal Appeal No. 1018/2002 Decided By Hon'ble Apex Court On

25.07.2003. 3

Ram Nath v. State of Madhya Pradesh (AIR 1953 SC 420).

3



It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated. 4



It is neither a rule of law nor of prudence that a dying declaration requires corroboration by other evidence before a conviction can be based thereon. 5



The primary effort of the court is to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing then the court may, for its assurance; looking for corroboration to the dying declaration. 6

HOW A DYING DECLARATION SHOULD BE? There is no particular form of dying declaration. But crucial factors such as to w ho had stabbed the deceased and what are required to be included in the dying declaration. Questions and answers form is the best form of dying declaration. However, whenever a dying declaration is being recorded in the form of questions and answers, precaution should be taken that exactly what questions are asked and what answers are given by the patient should be written. Where the dying declaration was not recorded in question answer form, it was held that it could not be discarded for that reason alone. A statement recorded in the narrative may be more natural because it may give the version of the incident as perceived by the victim. A dying declaration may be in the following forms: 

Written form



Verbal form



Gestures and signs form o Where a person is not capable of speaking or writing he can make a gesture in the form of yes or no, by nodding and even such type of dying declaration is valid.

4

Khushal Rao v. State of Bombay (1958 SCR 552)

5

Harbans Singh V. State of Punjab (1962 AIR 439)

6

State of U. P. v. Ram Sagar Yadav (1985 AIR 416)

4

o The value of the sign language would depend upon as to who recorded the signs, what gestures and nods were made, what were the questions asked, whether simple or complicated and how effective and understandable the nods and gestures were. o In Queen-Empress v. Abdullah 7 Accused had cut the throat of the deceased girl and because of that, she was not able to speak. So she indicated the name of the accused by the signs of her hand. It was held by the full bench of Hon'ble Allahabad High Court that, “If the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.” 

A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is prompted and everything is coming as such form the mind of the person making it. It is preferred that it should be written in the vernacular which the patient understands and speaks.

INCOMPLETE DYING DECLARATION Where deceased fails to complete the main sentence (as for instance, the genesis or motive for the crime) a dying declaration would be unreliable. However, if the deceased has narrated a full story, but fails to answer the last formal question as to what more he wanted to say, the declaration can be relied upon.

LANGUAGE OF DYING DECLARATION Dying declaration recorded in the language of the declarent acquires added strength and reliability. 8 Where the deceased made the statement in Kannada and Urdu languages, it was held that the statement could not be discarded on that ground alone, or on the ground that it was recorded only in Kannada. Where the statement was in Telugu and the doctor recorded

7

1885 ILR 7 ALL 385

8

Najjam Faroqui v. State of W.B. 1992 Cr LJ 2574 (cal).

5

it in English but the precaution of explaining the statement to the injured person by another doctor was taken, the statement was held to be a valid dying declaration. Where the declaration was recorded by an Executive Magistrate in a language different from that in which it was spoken, the court said that it could not discarded for that reason alone.

WHO MAY RECORD A DYING DECLARATION? 

Magistrate: It is best that it is recorded by the special executive magistrate who deposed that he had satisfied himself that the deceased was in perfect condition to make statement which was supported by the police officer. The statement was not vitiated by interpolations or apparent inconsistencies and was consistent two earlier dying declarations. It was held that the dying declaration could be relied on and accepted even in absence of the certificate from the doctor that the deceased was in fit condition to make statements. 9 where the dying declaration was recorded by the special magistrate who was not entrusted with the duty of recording it, it was held that it could not be discarded as all precautions were taken before recording it and it inspired confidence. 10 Where the dying declaration was recorded by the magistrate which was neither signed by the deceased, nor continued date and time of its recording and the prosecution failed to give any explanation that the deceased was not in a position to sign it, it was held that such dying declaration which was impregnant with so many suspicious circumstances which created doubt about its genuineness and it was not safe to base conviction on it. 11 There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. 12 What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a

9

Pandian k. Nadar v. State of Maharashtra, 1993 Cr LJ 3883 (Bom).

10

Amir Jamal Khan v. State of Maharashtra, 1995 Cr LJ 1956 (Bom).

11

State of U.P. v. Shishupal Singh, AIR 1994 SC 129.

12

Kulwant Singh v. State of Punjab, (2004) 9 SCC 257.

6

proper case, it may be permissible to convict a person only on the basis of dying declaration in the light of facts and circumstances of the case. Where a declaration was recorded by a Magistrate who did not ask any questions to the injured person as to the circumstances of injury nor did he record that she was in the fit condition at that time, the declaration was held to be admissible. 

Doctor: If there is no time to call the magistrate, keeping in view the deteriorating condition of the declarant, it can be recorded by anybody e.g. public servant like doctor or any other person. Where the dying declaration was recorded by the doctor in question and answers form in the presence of other witnesses and it was corroborated with the testimony of other eye-witnesses, it was held that it was sufficient to convict the accused. 13 The dying declaration was recorded by the doctor as no Magistrate was available and the deceased clearly named the names of the accused in the statement. The fitness or condition of the deceased was not stated in the declaration but deposed in evidence. There was an entry in the “injury certificate” issued by the doctor revealing that “injuries were caused by some persons” as revealed by the deceased. Where the dying declaration was recorded by the doctor who failed to take signature or thumb impression of the deceased due to extensive burn injuries but it was attested neither by the I.O. nor any person of the medical staff or by relations of the deceased, the declaration was held to be unreliable. 14



Police: It cannot be said that a dying declaration recorded by a police officer is always invalid. Dying declaration recorded by police does not stand self-condemned but creates suspicion. In emergency, it can be recorded without calling a Magistrate or doctor. 15 A clear and corroborated dying declaration cannot be rejected just only because it was recorded by a police officer. 16 Where the dying declaration was recorded by the police officer but not in the presence of any Witnesses nor any of the doctors, nurses or compounders on duty were present at the time of its recording and

13

Malik Ram Bhoi v. State of Orissa, 1993 Cr LJ 984.

14

Niru Nanhar Becck v. State of Orissa 1995 Cr LJ 2412.

15

Pearilal Rana v. State of W.B., 1992 Cr LJ 2644 (cal).

16

Ram Singh v. State (Delhi Admn.), 1995 Cr LJ 3838.

7

the police officer also failed to send it immediately to the nearest police station, it was held that the declaration was not reliable. Where the dying declaration was recorded by the police officials, it was held that such recording could not be treated as evidence on the showing that the said police officials had no grudge against the accused. Where the dying declaration, allegedly recorded by the police as the statement of an injured person, was neither submitted in the Court nor a copy of it was supplied to the accused but was produced for the first time in the Court by the police while giving evidence, it was rejected. It is not necessary that a dying declaration should be made only to a magistrate. Where no magistrate was available, the declaration was recorded by a head-constable in the presence of several independent witnesses. The declaration was held to be relevant. There was no possibility of tutoring by relatives and others. 17 Recording of a statement by a magistrate is not in itself a proof of its truthfulness. 

Dying declaration made to relatives: In case of dowry death it was held that dying declaration could not be rejected merely on the ground that it was made to the relatives of the deceased. 18

FACTS TO BE REMEMBER BEFORE RECORDING DYING DECLARATION 

The declarant was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind until the recording of dying declaration is completed.



The fact of fit condition of mind of declarant can be best certified by the doctor.



Yet, in case of where it was not possible to take fitness from the doctor, dying declaration has retained its full sanctity if there are other witnesses to testify that declarant was in fit condition of the mind which did not prevent him from making dying declaration.

17

Charipillai Shankarrao v. Public prosecutor, HC of AP., AIR 1995 SC 777.

18

Bhoora Singh v. State of U.P., 1992 Cr LJ 2294(All).

8



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.

CONDITIONS FOR ADMISSIBLITY 

The declarant, who gave dying declaration, should have died.



Admissibility of dying declaration is explained in the section 32 (1) of Indian Evidence Act.



When the statement is made by a person as to the cause of death or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person‘s death comes into question. Such statements are relevant whether the person who made this was expecting death or not. 19



The dying declaration must be complete. 20



The cause of death must be explained by the declarant or atleast the circumstances which resulted his/her death must be explained.



The declarant, who makes dying declaration, must be conscious and coherent.



The declarant must be sound state in mind.



The cause of death of declarant must be in question.



However, the declarant need not to be under expectation of death unlike English Law.



The declarant need not be under shadow of death. 21



The dying declaration may be in verbal form.



The whole dying declaration must be taken into consideration by the Court but not some portion of it.

19 20 21

section 32 (1) of Indian Evidence Act AIR 1956 SC 168 State of Haryana v. Manageram & ors. (AIR 2003 SC 558)

9



The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed.



Corroboration to dying declaration not necessary. 22



Exact words of deceased in dying declaration need not be stated. 23



It is immaterial that the person put a thumb impression or signed a dying declaration if the declaration is duly witnessed.



If a declarant, who is laying in the bed, is unable to get up to sign due his condition, or it is convenient for him to put thumb impression, he can put thumb impression.



There is usually no time limit that dying declaration becomes invalid.

FACTORS TO BE CONSIDER WHILE APPERICIATING DYING DECLARATION It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination. Court should be satisfied that there was no possibility of tutoring or prompting. Certificate of doctor should mention that victim was in a fit state of mind. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the dying declaration. But court cannot be too technical. The declarant is in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind until the recording of dying declaration is completed. The fact of fit condition of mind of declarant can be best certified by the doctor. Yet, in case of where it was not possible to take fitness certificate from the doctor, dying declaration has retained its full sanctity if there are other witnesses to testify that declarant was in fit condition of the mind. However, it should not be under the influence of anybody or prepared by prompting, tutoring or imagination. A dying declaration authenticated by thumb impression where the author had sustained 100 percent burns may be a factor to doubt it. 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 inconsistent or contradictory, such dying declarations lose the ir value. When interested witnesses were attending the deceased when he was making a

22

1990 Cr LJ 1129

23

1990 Cr LJ 2720

10

dying declaration and because of the injuries, the deceased is neither physically or mentally fit, no reliance can be placed on such dying declaration, in the absence of evidence to show that the deceased was physically and mentally capable of making the dying declaration and was not the victim of any tutoring. The death of a married woman in the matrimonial home three or four months after her statements expressing the danger to her life has been held to be a statement explaining the circumstances of her death.

EVIDENTIARY VALUE OF DYING DECLARATION 

Evidentiary value of dying declaration will change from case to case according to fact and circumstances of each case.



A dying declaration must be recorded in exact words spoken by the declarant.



If a competent Magistrate records a dying declaration in question and answer form, such dying declaration will have much evidentiary value.



If a dying declaration is recorded No sooner does the info rmation receive than the dying declaration is recorded, tutoring by interested persons can be avoided.



In case more than one dying declarations, all such declarations must be identical.



In Jai Prakash v. State of Haryana, 24 it was observed that a statement of victim which was recorded by the police officer in hospital. Later, such statement was taken to be a dying declaration.



In some cases, F.I.R was also considered as a dying declaration.



Inconsistent dying declaration is no evidentiary value. (Smt Kamla vs State of Punjab 25 )



The dying declaration recorded by the Clerk in the presence of Magistrate not inadmissible. Scribe need not be produced to prove it.



Despite there is a dying declaration. Court seeks further corrobo ration. However, Conviction can be based on it without corroboration if it is true and voluntary.

24

(1998) 7 SCC 284

25

AIR 1993 SC 374

11



Replies by signs and gestures constitute verbal statement resembling the case of a dumb person and is relevant and admissible in evidence. 26



Dying declaration is an exception to hearsay evidence because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died.



Dying declaration is valid both in civil and criminal cases whenever the cause of death comes into question.



Dying declaration not attested by wife or doctor present there. Smacks of concoction. Inconsistency in oral and medical evidence. Conviction cannot be based on s uch evidence.



It is perfectly permissible to reject a part of dying declaration if it is found to be untr ue and if it can be separated [Nand Kumar v. state of Maharastra. 27 ].



Declarant suddenly dying and his thumb impression taken after his death held dying declaration admissible in evidence. (AIR 1962 SC l252)

In K. R. Reddy v. Public Prosecutor28 evidentiary value of dying declaration was observed as unde r: 

The dying declaration is undoubtedly admissible under section 32 and not being statement on oath so that its truth could be tested by cross-examination.



The court has to apply the scrutiny and the closest circumspection of the statement before acting upon it.



Great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination.



The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancor.

26

AIR 1949 Nag 405

27

Cr LJ 1998 1313

28

1976 (3) SCC 618

12



Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to record the conviction even without further corroboration.

In Khushal Rao v. State of Bombay, Supra, Hon'ble Apex Court laid down following principles: 

There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true and voluntary declaration needs no corroboration.



A dying declaration is not a weaker kind of evidence than any other piece of evidence.



Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.



A dying declaration stands on the same footing as other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principle governing the weight of evidence.



A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers and as far as practicable in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character.



In order to test the reliability of a dying declaration the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed in the night; whether the capacity of man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested party.

13

In State of U.P. v. Madan Mohan29 , Hon'ble Apex Court Held that: 

It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination



Court should satisfy that there was no possibility of tutoring or prompting.



Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.



Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.



Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the dying declaration. But court cannot be too technical.

Sham Shankar Kankaria v. State of Maharashtra 30 : 

Hon'ble Apex Court held that, The situation in which a person is on death bed 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. It is for this reason the requirements of oath and cross-examination are dispensed with. If dying declaration is excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

In Pakala Narayana Swami vs Emperor ((1939) 41 BOMLR428): 

The statement of Pakala Narayana Swamy's wife, ''He is going to Berhampur to get back his amount'' was considered as a dying declaration''.

29 30

AIR 1989 SC 1519 (2006) 13 SCC 165

14

In Gulam Hussain Vs State of Delhi (Decided By Hon'bleSupreme Court on 4.8.2000): 

Held that, the submission that dying declaration cannot be accepted as recorded by I.O. has no substance because at the time of recording the statement PW 22 Balwan Singh did not possess the capacity of an investigating officer as the investigation had not commenced by then. Therefore, statement to PW 22 Balwan Singh is treated as a dying declaration.

DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST HEARSAY Black's Law Dictionary defines hearsay as, "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 31 The general rule is that in order to prove fact best evidence must be furnished and direct evidence is the best evidence. Hence, as a general rule the admissibility of hearsay evidence is excluded though there are exceptions to it. Dying declaration is one of the exceptions to the direct evidence as stated above and the necessity is for its admissibility. The victim, a prominent witness to the occurrence, being dead in the absence of any other witness, exclusion of the dying declaration may lead to the acquittal of the accused resulting in miscarriage of justice. Hence, there is need for this exception. It may be stated here that the law requires that the evidence in a court of justice should be given on oath. An oath is an application of the religious sanction. A witness who violates the sanctity of oath by narrating facts untrue to his knowledge exposes himself to be punished for perjury. Furthermore, the testimony of a witness in a court is liable to be scrutinized and tested by cross-examination, but the dying declaration is not subject to any of the above safe guards to guarantee its truth.

31

Dying declaration, at http:/www.lawyersclubindia.com/articles.

15

RELEVANCE OF DYING DECLARATION: 

Basis of Dying Declaration: How Problematic? Dying declaration is an important piece of evidence and conviction can be based solely on a dying declaration. Its admission in evidence is necessitated by the fact that in many of the incidents of murder there is usually no eye-witness except the injured victim. Hence, if his statement about the circumstances in which his death occurred is not admitted in evidence during the criminal trial, then the only evidence of crime would be lost resulting into miscarriage of justice. Another ground, on which the admissibility of dying declaration rests, is the belief that "truth sits upon the lips of dying men”. But, by Para 2 of Clause (1) of Section 32 of the Act, the very foundation from which the sanctity of a dying declaration is born is pulled out from its ethical and religious base and its consequent evidentiary value? The paragraph makes it very clear that the person making the declaration' should not necessarily be under expectation of death. Discarding the English principle of accepting a dying declaration only when it is made under the settled expectation of death, this section takes away the sincerity of the statement that is desired. The main problem with dying declaration is not so much one of sincerity or faulty memory, but one of perception. Motive of hatred and revenge may lead a declarant to make false statements, even with the approach of death. The declarant may exhibit strong feeling of hatred and revenge and if he is in such a frame of mind, the supposed guarantee of trustworthiness fails, and the' declaration should not be admitted. Dying declaration has been subject to judicial scrutiny on innumerable occasions; the need of relying on a dying declaration has been questioned especially in those cases where the killing was not secret and there were other adequate testimony as to the circumstances of the death.



Evidentiary Value to be Attached to A Dying Declaration There doesn't seem to be much controversy as far as. the question of a dying declaration being a significant piece of evidence is concerned. The divergent and conflicting judicial opinion has been with respect to value and importance to be attached to dying declaration in basing the conviction of an accused: The Courts in

16

India have held time and again, that a dying declaration before it could be relied upon must pass a test of reliability, as it is a statement made in the absence of the accused and there is no cross-examination of the declarant to test its genuinety or veracity. Thus, a dying declaration must be subject to close scrutiny. A dying declaration in India stands on a different footing than in England. Under the English law, credence and the relevancy of a dying declaration is important only when person making such statement is in hopeless condition and expecting an imminent death." In India, the weight to be attached to a dying declaration depends not upon the expectation of death that is presumed to guarantee the truth of the statement, but upon the circumstances and surrounding under which it was made, and very much also upon the nature of record that has been made of it. It is almost a question of fact whether a dying declaration should be relied upon or not. In one of its earliest judgments on dying declaration the Supreme Court had held that. it was not safe to convict an accused on an uncorroborated dying declaration. Since then, the Supreme Court in a catena of cases has held that conviction can be based on an uncorroborated dying declaration provided that the The position with respect to corroboration of a dying declaration in India is similar to that in England. The position being, that there is no absolute rule of law that prevents an uncorroborated dying declaration from being admitted in evidence. Courts while admitting dying declarations need to do a great balancing act between the rights of the accused and ensuring delivery of justice. Since, the accused cannot crossexamine declarant as to the truth of his/her declaration; there arises need for a dying declaration that will inspire full confidence of the Court in its correctness. Section 32(1) of the Act makes it clear that the declaration can be admitted only when the death of the declarant comes into question. Such a construction poses problems in many situations. For e. g. B and his wife were shot at. Both of them died. Mrs. B. when dying described the assailant. Her declaration was excluded, because it was not her death but the death of her husband that was the subject matter of the charge. Wigmore calls this exclusion the senseless rule of exclusion. In situation such as above the declaration with respect to other person's death also need to be admitted in order to prevent the miscarriage of justice. The law commission of India, in its

17

sixty-ninth report on the Indian Evidence Act, 1872 observed that the language of the Section is even now capable of a wider construction". Accordingly it recommended that, an explanation II might be added to Sec. 32 (1) on the following lines; “The circumstances of the transaction which resulted in the death may include facts relating to the death of another person. 

Procedures and Precautions: Section 32(1) of the Act is silent about the person to who m a dying declaration can be made and the mode of making such a dying declaration. The same has rightly not been provided since, for someone who is breathing his last, it would be ridiculous to make him/her undergo several procedures before he she could ge t his/her dying declaration recorded. But, the absence of sued provisions gives rise to several questions. For example, can a dying declaration made to the only family member present at the time of killing be believed? Can an investigation officer record a dying declaration? Will the statement made to a magistrate under Section 164 of the Code of Criminal Procedure cover a dying declaration as well? What happens in cases where there is no certification by the doctor to the effect that the declarant was in a fit state of mind while making the declaration? There cannot be straight answers to such questions since, the admissibility of a dying declaration is very fact specific and to a great extent is determined by the circumstances under which it was made. Section I62 (1) of the Code of Criminal Procedure provides that any statement made to a police officer during the course of investigation is inadmissible. But Clause of the same section makes an exception in favour of dying declaration by providing that, the provisions of this section shall not apply to statement falling within the provisions of S. 32(1) of the Act. The Courts have been hesitant to admit dying declarations made to an investigation officer. for the obvious reason that investigating officers being interested in the success of investigation might tamper with the dying declaration to tilt the balance in their favour. The Supreme Court in the case of Dalip Singh v. State of Punjab has held that it is better to leave dying declarations made to police officers during instigation out of consideration until and unless prosecution satisfies the court as to why it was not recorded by a magistrate or doctor. It further held that such declarations might be relied upon if there was no time or facility for

18

adopting the better method. Several High Courts have also held that it is not prudent to base conviction on a dying declaration made to an investigating officer and the practice of the investigating officer recording dying declaration should not be encouraged. It all depends on the facts and circumstances of the case. Thus, where the dying declaration recorded by the police officer was natural, coherent, truthful, narrating incident without embellishment and explicitly identifying accused, such dying declaration was held to be valid.“ But, where the investigating officer had recorded the dying declaration even before the victim was certified by the doctor to be fit for making a statement and though the victim survived for two weeks thereafter. the investigating officer made no efforts to get this statements record ed by a magistrate, it was held, that no reliance could be placed on such dying declaration. 32 Similarly, there is no hard and fast rule that a doctor's certificate as to the mental fitness of the deceased is prerequisite for the admissibility of a dying declaration in evidence. A constitutional bench of the Supreme Court in the case of Laxman v. State of Maharashtra while rejecting the contention of the appellant, that since the certification of the doctor was not to the effect that the patient was in a tit state of mind to make the statement, the dying declaration could not form the sole basis of conviction, held that it cannot be said that since there is no certification as to fitness of mind of the declarant, the dying declaration is not acceptable. The Court held that what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a tit state of mind. The Court further held that a certificate by doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise. There might arise situations where it would not have been possible to get a doctor, thus a dying declaration recorded in such situations cannot be rejected merely because there was no one to certify the fact that the deceased was in a fit state of mind while making the statement. In such situations the court need not reject the dying declaration but should subject it to strict scrutiny to verify the truth and genuineness of its contents. Once the Court is satisfied that the dying declaration was recorded without deceased being 32

Gulab Singh v. state, 1995 Cr. LJ. 3180 (Del)

19

tutored, the same should be accepted and relied upon. Thus, a dying declaration should not be rejected merely on the ground that certain formalities were not complied with. As long as it is truthful and voluntarily made it should be relied upon.

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

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.



If the declare r is not a competent witness: Declarer must be competent witness. A dying declaration of a child is inadmissible. In Amar singh v. State of Madhya Pradesh, 33 it is held that without proof of mental or physical fitness, the dying declaration is not reliable.



Inconsistent declaration: Inconsistent dying declaration has no evidential value.



Doubtful features: In Ramilaben v. State of Gujarat 34 : Injured died 7-8 hours after incident, four dying declarations recorded but none carried medical certificate. There were other doubtful features too, so it is not acted upon.



Influenced declaration: It must be noted that dying declaration should not be under influence of anyone.



Untrue declaration: It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated.



Incomplete declaration: Incomplete declarations are not admissible.



If statement relates to death of anothe r person: If statement made by deceased does not relate to his death, but to the death of another person, it is not relevant.



Contradictory statements: If a declarant made more than one dying declarations and all are contradictory, then all those declarations lose their value.



33 34

Unsound pe rson: The statement of unsound mind cannot be relied upon.

1996 Cr LJ (MP) 1582 AIR 2002 SC 2996

20



If dying declaration is not according to prosecution: If dying declaration is inconsistent with the case of prosecution it is not admissible.

JUDICIAL GUIDELINES ON DYING DECLARTION Sudhakar v. State of Maharashtra, 35 in this case Hon’ble Supreme Court has laid down following guidelines: Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death. or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to w iden the sphere of section 32 to avoid injustice. The test of proximity cannot be too literally construed and practically reduced to a cutand-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under section 32. The second part of clause (1) of section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-

35

AIR 2000 SC 2602: 2000 6 SCC 671

21

examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. It may be important to note that section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell- tale story, the said statement would clearly fall within the four comers of section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

CONCLUSION A dying declaration is indeed an important piece of evidence. So much so that conviction can be based solely on the basis of dying declaration. Keeping in mind the above mentioned opinions of various courts it is suggested that whenever dying declaration is to be recorded it should be recorded very carefully keeping in view the sanctity which the courts attach to this piece of evidence. It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated. Conviction can be based on it without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it is not as per prosecution version. At that point of time every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Such a solemn situation is considered by the law as creating an obligation equal to which is imposed by a positive oath administered in a court of justice. The dying declarations are weak kind of evidence even though they are based on the principle that a person would not die with a lie in his mouth. The laws relating to ding declaration need certain changes to be incorporated into it, so as to make it more relevant in today’s context.

22

REFERENCES Bibliography: 

Dr. Avatar Singh “Principles of the law of Evidence”, 21st Edition, 2014.



Ratanlal & Dhirajlal “The Law of Evidence”, 26th Edition, 2017.

Websites: 

www.legalserviceindia.com “Dying Declaration – section 32 of Indian Evidence Act” by Shipra Arora.



www.vbook.pub.com “Dying Declaration” by Deepak Saroj.



www.mja.gov.in “Summary of Workshop paper on Dying Declaration” by Members of Criminal Core Group.