When an offence is committed there are atleast two parties involved, one is the person who has committed the offence i.e accused and the other one is the person on whom an offence is committed i.e victim. After investigation they are brought before the Magistrate / Judge to defend themselves but there are instances when one of the party dies and can’t appear in the court to prove their position.
The statement given by the person at the time of his death stating the reason for his death is called "Dying Declaration". In such a case, the statement of relevant fact given by the deceased becomes a relevant evidence in the court of law. The general principle on which Dying Declaration are admitted is that they are statements made in extremity. When the party is at the point of death and when every hope of the world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak only the truth[1].
Section 32 of the Indian Evidence Act defines Dying Declaration as a statement whether written or oral, by a person who is dead or can’t be found or is incapable of giving evidence or his attendance can’t be procured. Such statements are relevant when such a person gives his statement under the expectation of his death and when the cause of such person’s death is in question.[2]
The declaration made by the dead person is treated as evidence and is admissible in the court of law. In India, Dying Declaration is based on the Latin maxim Nemo Mariturus Presumuntur Mentri - translated into English- “No one at the point of death is presumed to lie” which means “Man Will Not Meet His Maker With Lying On His Mouth”. Further, in Indian law, it is believed that a dying person will never lie and the truth sit on the lips of a dying man. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, coming from the mouth of the deceased[3]. In the case of Kundula Bala Subrahmanyam v. State of A.P[4], the Supreme Court of India held that the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts and it becomes imperative and reliable piece of evidence.
Types of Dying Declaration:
There is no specific one way for making Dying Declaration admissible in the eye of law, it can be made in various forms like, oral, written, gestures, etc. Certainly, dying declaration should be made in the written form and in the exact words as stated by the deceased i.e the person who made the statement and also, such statement should be for his cause of death only[5].
Now let us discuss some types of Dying Declaration:-
1. Oral and written-
When a victim gives his dying declaration in oral or in written form, then it is admissible in the court of law. The Supreme Court emphasizes the need for corroboration of such statements made, specially where oral dying declaration is made by the deceased.
In the case of Uka Ram v. State of Rajasthan[6], the Supreme Court held that the statements made by a deceased as to his cause of death or to any circumstances which resulted into his death or any case where his death comes into question, is admissible piece of evidence.
In Pakala Narayana Swami vs Emperor[7] case, the statement of P.N.Swamy’s wife ''he is going to Berhampur to get back his amount'' was considered as Dying Declaration. Through this case, Lord Atkin said that, the circumstances of transactions which resulted into death of the declarant is admissible if such transaction has some proximate effect.
2. Gestures and Signs-
In numerous cases, the Supreme Court of India has observed the worth of signs and gestures, the value of sign language depends upon- to whom the gestures and nods were made, who has recorded such signs, what questions were asked, and was the deceased in fit state of mind to understand and answer such questions.
In the case of Queen-Empress vs Abdulla[8], the accused had cut the throat of the deceased girl through a Razor because of which she was unable to speak, therefore the hon’ble court held that if the injured person is unable to speak then they can make their declaration by signs and gestures in response to the questions asked.
Another case for gestures and signs dying declaration is of, the victim of Nirbhaya case[9] where her dying declaration was given in the form of signs and gestures as she was not in a proper state of giving her statements in oral or written form.
3. Question and Answer Form-
A statement recorded in question and answer form or in narrative maybe considered to be more natural as it increases the evidentiary value of the dying declaration. A death declaration when recorded by the Magistrate in the form of questions and answers, in the same words as of the declarant stands on much higher footing in comparison to oral dying declaration.
In the case of Kusa v. State of Orissa[10], the Apex Court held that the dying declaration is not admissible if the deceased fails to complete the main sentence of the incident. But if the deceased narrates the whole incident and is not able to answer the last question, in such a case the declaration is admissible.
4. Incomplete Dying Declaration-
The declaration made by the deceased, which is found to be not complete is not admissible in the court of law. When the declarant fails to complete the main sentence of the dying declaration, then in such a case the declaration would be unreliable.
However, if the declarant narrated the whole story but fails to answer the last question or fails to give his statement about further information, then the declaration would be relied upon. In the case of Muniappan v. State of Madras[11], the deceased made the dying declaration as “Sir, This day 24th January 1960 in the afternoon at 12:30 Muniappan son Kola Goundan of Kamnav-Kurechi stabbed me in my body with a knife.” After giving this statement the declarant died and his thumb impressions were taken after he was dead. In such a case the dying declaration was considered to be a valid piece of evidence as the statement given by the deceased was complete even though he wanted to add more statements to it.
Probative Value of Dying Declaration:
Dying Declaration is neither made on an oath nor in the presence of accused. In the court of law, there can’t be a preliminary presumption that such a dying declaration contains only truth. Further, the declarant of such dying declaration is not available for cross- examination, thus there is no concept of cross- examination in such cases.
Principles of governing the dying declaration are enumerated in the case of Paniben vs State Of Gujarat[12], it was held that dying declaration is entitled to great weight. The dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. Only when the Court is satisfied that such a declaration is true and made voluntarily by the deceased, judgement can be based solely on it without requiring any additional evidences.
A Dying Declaration enjoys almost a sacrosanct as a piece of evidence. It comes from the mouth of deceased victim. Once the statement of the dying person and the evidence of witness is testified in the Court, they pass the test of careful scrutiny. It becomes imperative and reliable piece of evidence and when the court is satisfied that the dying declaration is true and free from any embellishment, such declaration by itself can be sufficient for recording conviction even without any corroboration.
Factors Determining the Veracity of Dying Declaration:
Whether the deceased was in a proper mental condition (without any fear) while giving his death declaration,
Documents show that the deceased was not in a fit state of mind,
Inconsistency in Dying Declaration,
To whom the Declaration was made, and
Whether the statement is recorded in the same language and in the exact word of the declarant.
It is highly unsafe to base the conviction of accused on a dying declaration where valuation of all or any one of the above mentioned points are missed out. In the case of State of Orissa v. Parasuram Naik[13], husband, the accused was alleged to pour petrol on his wife, the deceased, and lit a fire which resulted into extensive burn injuries on her. Court held that because of extensive burn injuries she was not medically fit to give oral dying declaration to her mother. Therefore, Court rejected the admissibility of such a dying declaration.
What if Declarant Remains Alive:
If the maker of dying declaration ultimately survives, then the said declaration is not a statement under Section 32[14] anymore, but it is a statement under Section 162 or 164 of CrPC. It can be used under Section 157 for the purpose of corroboration or under Section 145 for the purpose of contradiction. Therefore, the victim can now be a witness against the accused and narrate the whole story in court.
Who may Record a Dying Declaration:
Any person can record a dying declaration but the person recording the dying declaration must have some nexus with the deceased. However, doctors, police officers and magistrate’s recordings hold more value as compared to other persons.
I. By Magistrate:
The statements recorded by the competent magistrate is of strong evidential value. They are considered as star witness as their recordings are permissible in the court of law. Moreover, they are empowered under section 164(5) of CrPC.
In the case of B. Shashikala vs State Of Andhra Pradesh[15], recording was done by the magistrate and the questions asked to deceased were translated in Hindi by the doctor. Court said following precautions are to be taken while accepting Dying Declaration:-
a) Statement should be recorded as early as possible.
b) To make sure that the deceased was not tutored before giving her statements.
c) The declaration given to magistrate is more preferred in comparison to oral testimony.
d) Deceased was in fit state of mind while giving her declaration.
e) Statements consistent throughout, if he had opportunity to give more than one declaration.
f) Language of the statements by the victim and the other person too[16].
II. By the Doctor and Police Officer:
A dying declaration recorded by Police officer or a doctor has good evidential value in the court of law. Statements recorded by the police officer is admissible, which is an exception to the general rule under Section 162 of CrPC.
In many cases it is observed that due to lack of time and deteriorated condition of the dying victim, it is not possible to wait for the magistrate, therefore dying declaration recorded by the doctor is admissible in the court of law. After recording the statement, doctor makes the certificate which includes whether the deceased was in fit state of mind while giving the declaration or not. Then the duty of the doctor is to inform either the family member of the deceased or to the administer body. In case of N. Ram vs State[17], deceased gave his dying declaration to the doctor and he said that the deceased was not in a proper state to give his dying declaration. But there was a witness present which stated that the deceased was in a fit state of mind. Court held that the medical certificate by the doctor can’t wipe out the direct testimony of an eye witness which states that the deceased was in a proper mental condition and was able to make dying declaration. Therefore, declaration of death was admissible.
III. By a normal person/ Family member:
A Dying declaration can be recorded by a normal person or by the family of the deceased. The court can’t reject such declaration solely because it was made to a normal person, such a declaration has to be supported by circumstantial evidence. A person who records the declaration has to prove that the deceased was in a fit state of mind and conscious while giving his/her statements.
In the case of Shudhakar vs State Of M.P[18], the Supreme Court said that dying declaration should not be the outcome of encouraging statement, torment or imagination. Generally, court depends upon the medical certificate to check whether the deceased was in a fit state of mind while giving his/her declaration, but in this case the court said, medical opinion is submissive and if the doctor doesn’t have medical certificate of fitness of mind it doesn’t mean that the death declaration is not admissible. Therefore the court accepted the dying declaration as the person who recorded the declaration was convinced that the deceased was in fit state of mind while giving his death declaration.
Points to Remember:
It is not absolute rule of law that a dying declaration can’t form the sole basis of conviction unless it is corroboration.
Each case must be determined on its own fact keeping in view the circumstances in which dying declaration was made.
It can’t be said that a dying declaration is a weaker kind of evidence than other piece of evidence.
Dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances.
The statement must be consistent throughout and must have been made at the earliest opportunity.
It should not be a result of tutor by the interested parties.
Medical certificate by the doctor to check whether the declarant was in a fit state, but eye witness account shall prevail over medical opinion.
Declaration can’t be acted upon if prosecution version differ.
If there was more than one Dying declaration they must be consistent with one another. If one is recorded by police officer and other by magistrate after few days, if they corroborate with each other, then the court can rely on it. But if there are several dying declaration, they must pass the test of trust worthiness.
In India, dying declaration is used in both civil law cases and criminal law cases.
A piece of unofficial information acquired out-of-court is referred to as hearsay[19]. A dying declaration is a type of hearsay. However, unlike regular hearsay, a dying declaration is admissible in the court of law. As such, a dying declaration is an exception to hearsay rule.
[1] Uka Ram v. State of Rajasthan, Appeal (cr.) 749 of 2000 [2] Kushal Rao vs The State Of Bombay (1958 SCR 552 : AIR 1958 SC 22) [3] Smt. Laxmi vs Om Parkash & Ors, 2001 (Criminal appeal 717 of 1994) [4] 1993 SCR (2) 666, 1993 SCC (2) 684 [5] Ratan Gond vs The State Of Bihar (1959 AIR 18, 1959 SCR 1336) [6] AIR 2001 SC 1814 [7] (1939) 41 BOMLR 428; AIR 1939 PC 47 [8] (1885) ILR 7 All 385 [9] Mukesh & Anr vs State For Nct Of Delhi & Ors {Cr APPEAL (607-608 OF 2017), SLP (Nos. 5027-5028 of 2014)} [10] AIR 559, 1980, SCR (2) 801 [11] AIR 1962 SC 1252, 1961 CriLJ 315, 1962 3 SCR 869 [12] 1992, AIR 1817, 1992 SCR (2) 197 [13] 1997, Criminal Appeal No. 626 of 1990 [14] Indian Evidence Act, 1872 [15] 2004, Appeal (Cr.) 985 of 1997 [16] Amarsingh Munnasingh ... vs State Of Maharashtra, 2007 (Criminal appeal 97 of 2006) [17] WRIT - C No. - 40772 of 1993 [18] 2012, (CRIMINAL APPEAL NO.2472 OF 2009) [19] Section 60 of Indian Evidence Act, 1872
Author: Poorva Bhardwaj, Intern, S&D Legal Associates.