“Dying declaration” as the expression denotes is a statement made prior to death when the maker is in danger of death. Dying declaration can be a form of hearsay evidence. But it forms an exception to the general rule that hearsay evidence cannot be accepted.
There are mainly three types of dying declaration, viz. verbal, written and through gestures.
At present, there is no statutory prescription as to the manner in which the dying declaration is to be recorded. Certain judicial pronouncements hold that there should be the presence of Magistrate and certification of a medical practitioner needed as to the mental and physical condition of the person so as to fall within the scope of Section 31(1) of the Evidence Act.[1] If we read Section 32(1) of the Indian Evidence Act along with the illustration for the dying declaration provided therewith, we will get a clear picture as to which types of statements made at which times are relevant.
Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—
1) when it relates to the cause of death. —When the statement is made by a person 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 that person’s death comes into question. 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, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
The illustration relevant at the point as provided in the Section:
The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.
The supporting strong point with regard to the above proposition is the maxim “nemo mariturus presumuntur mentri“ which means “the man will not meet his maker with a lie in his mouth.”
So when does the Dying Declaration applicable?
The dying declaration is applicable only when the person made the statement dies. Now the Courts must accept the statement to be a true one based on the above maxim. But great caution is needed before accepting the statement as true. Primary conditions for admitting dying declaration are as follows:
A. The deceased was actually in danger of death
The declarant need not be in the imminent danger of his death. The only thing required is that the deceased was actually in danger of death.
B. The deceased apprehended his death
This means that the deceased must have knowledge of his death at some point of time through an untoward incident. There must be reasonable apprehension in his mind about his death. However, a dying declaration may not be rejected merely because it was made just immediately prior to the death of the declarant.
C. Death happened following the declaration
Death should happen after making the dying declaration.
In the case of Khushal Rao Vs. State of Bombay[2] this Court laid down the following propositions of law relating to the test of the reliability of dying declaration :
- That it cannot be laid own as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
- That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
- That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.
- That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of the evidence;
- That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that 1s to say, in the form of Questions and Answers, and, as far as practicable, in the words of the maker of the declaration which depends upon oral testimony. wich may suffer from all the infirmities of human memory and human character; and
- That 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 at night; whether the capacity of the 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 parties.
In ATBIR .v. GOVT. (CT OF DELHI)[3], the Supreme Court laid down the following principles relating to Dying Declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot be the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii)Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
More criteria to test the genuineness of Dying Declaration
The following points will help the Courts to reach a reasonable safe conclusion to admit dying declaration as safe to be relied upon. The list, however, is not exhaustive. Sometimes, more than one point will have to be considered before accepting the declaration in total.
1) If a statement is dying declaration would depend upon the time at which it was made by the deceased in relation to the occurrence of the event.
This means that there must be a proximate relation between the declaration and the circumstance of the death of the declarant. In Rattan Singh vs. H.P[4], a woman declared that the accused is standing near her with a gun. The woman was killed and her statement was said to be a dying declaration which has a proximate relationship with the happening of her death.
2) The person to whom it was made will be considered
No particular form of dying declaration is prescribed. The person who is dying cannot choose a particular person of his choice to make the statement. But in other cases, a declaration made to a doctor, a Magistrate, a friend or near relative and a police officer is considered. However, the most reliable among these is the one given to Magistrate[2].
3) The sequence of events which led the deceased to make the statement
The circumstance of transaction which caused death came into consideration in Pakala Narayana Swami vs. Emperor [5]. Necessarily we are not concerned with circumstance causing death at this point. But circumstances of the transaction which caused death can necessarily be inferred from this. In this case, the deceased told his wife that he was going to visit Pakala Narayana Swami and left the house. Later somebody killed him. Privy Council found that the circumstance of transaction which caused his death is relevant as per Section 32(1) of the Indian Evidence Act.
4) The physical and mental condition of the deceased prior to making the statement is noteworthy
The grievous injuries sustained by the declarant on vital body parts and consequential death soon after giving the statement is sufficient to conclude that the victim was in expectation of his death. [1] Rafique @ Rauf & others vs. State of U.P. 2013 7 SCR 293.
However, medical certification is not a pre-condition for admitting dying declaration if the witness to the declaration gives satisfactory evidence as to the medical condition of the declarant.[6]
5) Cogency with which the statement is made
In Jayaraj v. State of Tamil Nadu[7] Supreme Court held thus: “When the deponent was in severe bodily pain, and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring.”
6)The attending circumstances whether throws any suspicion as to the fact of the statement said to have been made
The reliability of the dying declaration has to be analyzed in relation to the attending circumstances involved. The Courts must scrutinize whether the declarant actually had any opportunity to actually observe the assailants. The deceased must actually have identified the assailants while making the statement.[8]
7) Any other factor existing in order to contradict the statement said to have been made
The court must look into the existence of any fact which is corroborated and admissible in evidence to prove the falsity of the dying declaration. If the dying declaration contradicts with the above fact, then the Court must deal with it cautiously. In such circumstances convicting anyone solely on the basis of such contradictory declaration is not considered prudent.
8) Whether the statement fully supports the case of the prosecution
If the contents of the declaration contradict the prosecution case, it will not be accepted. In State Of U.P. vs Madan Mohan And Ors[9], the version of the eye witness differs from that of dying declaration about the incident and the witness naturally available in the locality where crime happened also casts serious doubts and thus the contradiction in the prosecution case with that of the dying declaration will be crucial.
9) The language used to be considered
The dying declaration has to be recorded in the words of the deceased. However, the exact wordings are not necessary. In Baksish Singh v. State of Punjab[10] it was held that simply because the very words uttered by the injured are not reproduced, it is no reason to reject the dying declaration if the Court is otherwise satisfied that the dying declaration, as recorded, correctly reproduces what was stated by the injured. The Supreme Court in Tehal Singh V. State of Punjab[11] has held that the substance of the dying declaration written in the words of the writer attaches no infirmity. In Srinivasa and ors. v. State[12], the declarant and recorder of dying declaration were not speaking the same language. The dying declaration was therefore recorded with the help of a translator. The correctness of the translation was confirmed by the Doctor who knew both languages. In the circumstances, it was held by the Apex Court that the veracity of the dying declaration stands established.
10) The nexus of the deceased who made the statement to the crime and parties involved in crime
If the deceased will also be considered while testing the authenticity of the dying declaration.
11) The circumstances which made the person come forward with the statement will sometimes be suspicious.
Footnotes
- Rafique @ Rauf & Others V. State of U.P. (2013) 56 OCR (SC) 93
- AIR 1958 SC 22
- [2010] 9 SCC 1
- Criminal Appeal No. 509 of 1991
- AIR 1939 PC 47
- Laxma .v. State Of Maharashtra reported in AIR 2002 SC 2973
- AIR 1976 SC 1519
- Tapinder Singh v. State of Punjab – 1971 (1) SCJ 871
- AIR 1989 SC 1519
- 1957 AIR 904, 1958 SCR 409
- AIR 1979 SC 1347, 1979 CriLJ 1031, 1980 Supp (1) SCC 400
- (2005) 9 SCC 327
Thanks for reading this post. This post is a short note regarding the subject ‘Dying Declaration’. We know that the subject is intricate and hence we will strive in making it detailed in the future in our routine revival process. Please stay with us.
Disclaimer: The content of this post is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. To know our detailed Disclaimer, go to this link. You may also enlighten us with corrections and suggestions through our contact form or through comments.
Sharing is Caring. Please share the content. This will inspire us to post more scholarly content in this blog.
To submit scholarly articles on law or law notes visit this link.
Subscribe to our official Telegram Channel here
Join our official WhatsApp Group here