Introduction: 

Dying Declaration is a statement made by the person while he was dying and states the reason for death. The statement given by the dying person tells the cause of his death. The person who is dying, knows that the death is about to happen can make a declaration and tell the cause of his death and that statement will be treated as evidence before the court.

 

Legal Maxim:

The legal maxim stating the admissibility of dying declarations is “Nemo moriturus praesumitur mentire”, which states that to “a man will not meet his maker with a lie in his mouth” saying that a person facing imminent death is presumed to speak truthfully. The reason behind the Law of Dying Declaration can be followed by this Latin maxim is that a dying man can never lie in our Indian Law. So dying declaration is admissible and considered as evidence in Court and can be used as a weapon to punish the culprit.

 

Definition:

Section 32(1) of Indian Evidence Act1, defines the law of dying declaration. It says that when a statement is made by the person as the cause of his death, or as any of the circumstances of the transaction which resulted in his loss of life, in cases in which the cause of that person’s death comes into question. Such statements made by the person are relevant whether the person who made them was alive or 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.

 

Necessary Requirements:

There are some necessary requirements of The Law of Dying Declaration to be admissible as evidence before the Honourable Court, which are following…..

1. Competency: The person making the dying declaration must be competent to make this i.e must have the mental capacity to understand the nature and consequences of his declaration and must be capable to communicate his statement clearly.
2. Imminence of Death: The person making the declaration must be aware about his death. This can be inferred from the circumstances surrounding his statement, such as his physical condition or statements made by medical professionals.
3. Voluntariness: The declaration must be made freely and voluntarily. It can’t be obtained by threat, undue influence, coercion or other improper inducements.
4. Content of the declaration: The declaration must relate to the cause of the declarant’s death. It can include information about the identity of the declarant, the events leading up to death and any other necessary details.
5. Consistency: The declaration must be consistent with other evidence in the case. If there are significant inconsistencies, the court may question the reliability of the declaration.

 

Types of Dying Declaration:

There is no particular form to be employed in making the Dying Declaration. It can be oral, written, gestures & signs, thumb impression, incomplete and question answer form. However, there must be a distinct and definite assertion on the part of the person who produces the statement.

The types are following elaboratively…..

1. Gestures and signs: A declaration can also be made through gestures when the person is not capable of speaking. In Queen Empress vs Abdullah, 1885, the victim’s throat was cut by the accused and she was not able to speak. Therefore, she used gestures to convey the name of the accused. Similarly, in Nirbhaya’s rape case, dying declaration was made by her in the form of sign and gesture. The first declaration was recorded by the doctor when she was admitted in the hospital and the second by sub-divisional magistrate and the third declaration was made by the metropolitan magistrate. The dying declaration was made by signs or gestures.
2. Oral and written: The dying declaration can also be in the form oral and written by the declarant.
3. Incomplete Dying Declaration: Dying declaration made by the person, which is found to be incomplete can’t be admissible as evidence. When the condition of the deceased is grave and at his own request a statement made by him in the presence of the doctor was later taken by the police but could not be completed as the deceased fell into coma from which he could not recover. Though it is incomplete in the sense but conveys the declarant all necessary information, yet stated as complete in respect of certain fact then the statement would not be excluded on the ground of its being incomplete.
4. Question-Answer form: Dying declaration can be made in the form of Question – Answer. When recorded by a magistrate, question and answer format is preferred as it helps in gathering maximum relevant information accurately by the declarant.

 

Fitness of the declarant should be examined:

At the time of giving a declaration, the declarant must be in a fit state of mind. If the court has doubt about the mental state of the declarant, it is unsafe and unfair for the base on such a statement. When the dying declaration was made by the doctor and he certified that the patient was fit in condition for giving statement, then the court believes that the patient was in a condition to give statement.

In State of Madhya Pradesh vs. Dhirendra Kumar, 1996, according to the opinion of the doctor, the deceased was able to speak at the time of death. So, The Honourable Supreme Court did not agree with the view of the high court that the deceased was not in a position of making dying declaration at the time of death.

In State of Orissa vs Parasuram Naik, 1997, the accused (the husband) was alleged that he poured petrol on the body of his wife and lit a fire. The extensive burn injuries were sustained by the deceased wife. It was held that the oral dying declaration to her mother can’t be accepted because there was no certificate by medical officer certifying that the deceased was able to make dying declaration at the time of death.

 

Who should record the dying declaration:

Any person can record the dying declaration. The person who is recording the dying declaration must have nexus with the deceased. If a doctor or police officer records the dying declaration, it holds more value than recording by any normal person. Also, if the declaration is recorded by the magistrate, it holds even more evidentiary value rather than recording by doctor or police officer.

1. Recorded by a normal person: A dying declaration can be recorded by any normal person, if any doctor, police officer or magistrate is not available to record the dying declaration. So, in that case the Court can’t reject the dying declaration recorded by normal person. But it must show that the person who making the dying declaration must be fit in a state of mind to make dying declaration at the time of death of that person.
2. Recorded by the doctor or police officer: If there is no time for calling the magistrate as the declarant’s health condition is deteriorating then the dying declaration can be recorded by the doctor or police officer in front of one or two witnesses. So, the court can believe the declaration. If the doctor says that the deceased was not in a state of mind to make dying declaration, but the witnesses said that the deceased was able to make dying declaration, then the Honourable Court believe the opinion of the witnesses.
3. Recorded by the magistrate: When the dying declaration is recorded by the magistrate, it is deemed to be considered as reliable and believable before the court. The magistrate has been empowered to record dying declaration under Section 164, CrPC2. Section 164(1) of CrPC says that a magistrate can record the dying declaration within and also without the jurisdiction (under Section 164(6) of CrPC).

The declaration recorded by the magistrate must show that the declaration should be voluntarily. In Mahabir Singh vs. State of Haryana, 2001, The Court held that, when the magistrate did not clear the rule that the statement made by the deceased should not amount to confession, then it will be used as evidence against him, can’t be considered.

 

Language of the declaration:

The necessary requirements to remember that are following:

1. Dying declaration of the declarant should be recorded in any languages.
2. If the declaration was recorded in another language than the one which magistrate recorded, then precautions should be taken to explain each and every phrase.
3. The Court can’t deny the dying declaration by the declarant only on the basis of language.

In Biju Joseph vs. State of Kerala, 2013, the Honourable Court observed that the language of the declarant in which he is giving the dying declaration can’t reduce the value of the declaration.

 

Multiple dying declarations:

If the declarant has given multiple dying declaration and the declaration are similar to each other and there is no difference between them, then it can be admissible before the court. But, if the multiple dying declarations given by the declarant is not similar to each other and there is difference between them, then the Court can cross examine the facts of the case and can also recheck the statements of the witnesses to find out the truth of the dying declaration.

In Kushal Rao vs State of Bombay, 1957, The Honourable Supreme Court has laid down some important rules of dying declaration which are following….

1. The dying declarations should be made by the declarant in a fit state of mind.
2. It should be recorded in question – answer form
3. It should be supported by the doctor that the deceased was able to make dying declaration.
4. The dying declarations should be voluntarily.
5. If there are multiple dying declaration then they should be connected and related to each other.

 

F.I.R as a dying declaration:

In a situation where a person dies after lodging a FIR in police station and stating that his life was in danger, it is required to be recorded as circumstantial dying declaration.

In Munnu Raja and another vs. State of Madhya Pradesh, 1975, The Honourable Supreme Court observed that statement made by injured person recorded as FIR can be deemed as dying declaration and such declaration is admissible under Section 32 of Indian Evidence Act. It was also observed by the court that dying declaration must not show the whole incident or narrate the case history. Corroboration is not necessary in this situation, dying declaration can be declared as the exclusive evidence for the purpose of conviction.

 

If the declarant does not die:

When the dying declaration given by the deceased is recorded. But the question arises that after the dying declaration was recorded and the deceased is still alive, was the statement holds the same effect. In that situation, the deceased now turned to be a witness against the accused to narrate what the actual story was. As the dying declaration itself mentioned the word dying, so it is necessary that there must be an expectation of death on the part of the declarant.

 

Distinction between Indian and English Law about the law of dying declaration:

According to English law, the declarant must have had a concrete, hopeless expectation of dying, though he need not have been anticipating an early demise, in order for the dying declaration to be admissible.

Such limitations are not there under Indian law. Indian law does not specify that the maker must have a reasonable expectation of dying soon or that it must be a homicide. It must be established that the maker of a dying declaration is deceased before it may be accepted. If the maker lives, it might be used to support or refute his testimony in court.

 

 

Important Case Laws

In, K.R. Reddy v. Public Prosecutor, the following were found to be the dying declaration’s evidentiary value:

The dying declaration is unquestionably admissible under section 32, but because it wasn’t made under oath so that its veracity could be examined by a witness, the court had to examine it closely before taking any action. Although the words of a dying man are held in high regard because a person who is close to passing away is unlikely to tell lies or link a case in such a way as to accuse an innocent person, the court must be on guard against the statement of the deceased being the result of either tutoring, prompting, or a creation of his imagination.

The court must be convinced that the deceased was In a sound state of mind when he made the statement, that he had a clear opportunity to see and identify his attackers, and that he was speaking freely and without being under any duress. If the court determines that the dying declaration is genuine and voluntary, it may be enough to uphold the conviction even in the absence of additional evidence.

 

In , Sharad Birdhi Chand Sarda vs State of Maharashtra, AIR 1984 SC 1622:

In this case, the court held that in normal circumstances, a suicide note cannot be used as the sole basis for conviction. It must be corroborated with other substantive pieces of evidence

In, Sampat Babso Kale vs State of Maharashtra (2019, 4 SCC 739):

In this case, the court held that when there is a doubt as to the veracity (accuracy, truthfulness, conformity of facts) of any dying declaration, that whether the victim was in the fit state of mind to make the statement; then in such a case, the dying declaration cannot be treated as a sole basis for conviction. It must be corroborated with some other evidence too.

 

Conclusion

A dying statement is an important piece of evidence because it records the deceased’s last words in relation to their causes of death or the circumstances that led to their passing. Every effort should be taken to keep it clean and free of impurities of any kind.

However, due to a variety of factors, including the mental state of the person making the declaration, the mental state of the person who is reporting it, the overall circumstances of the dying presentation, common and customary human errors in observing things and in communicating everything that must be communicated to others in particular, human character and standards of conduct cannot completely eliminate the risk of demolishing dying declarations. When these facts, along with the circumstances discussed above and the waning confidence in the remaining aspects of the dying declarations, are taken into consideration, it is very likely that the dying declarations will be accepted as evidence after proper verification and in the wake of confirming the general circumstances that led to them. In modern times, it is not protected to grant sacred status to death pronouncements, to base a case’s discoveries purely on its premise, or to decide the outcome of cases and criminal investigations solely on its premise by the Courts, or even by Investigative agencies.