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Dying declaration

Dying declaration

Submitted by Submitted to

JAY VIJAY SINGH MR. SHUBHAM SRIVASTAV

Semester – 5th

Section - A

Roll no. – 625

NATIONAL UNIVESITY OF STUDY AND RESEARCH


IN LAW, RANCHI

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Dying declaration

DYING DECLARATION

Introduction

The term 'dying declaration' has not been defined in Evidence Act but reading Section 32 and
sub-section (1) of Section 32; the term "dying declaration" may be defined as follows:
"A dying declaration is statement made by a person who is dead; as to cause of his
death or as to any circumstances of transaction which resulted in his death, in cases in which
his death comes into question, such statements are relevant under Section32 of Evidence Act,
whether the person who made there was or was not, at the time when they were made, under
expectation of death and whatever may be the nature of proceeding in which the cause of his
death comes into question." 1
Dying declaration may be oral or written, when she gives names of assailants to
person present. If it is written by any of them it is relevant dying declaration. People present
may depose orally that the deceased has told the name of his assailants. 2 Oral dying
declaration is admissible in evidence as an exception to the general rule of evidence that
hearsay evidence is no evidence in eye of law and it should be discarded as general rule
because the evidence in all cases must be direct. Oral dying declaration is an exception to the
rule of hearsay evidence. 3
The oral dying declaration made by the deceased before his wife, the father-in-law
and other relatives was made in the conscious state. The doctor who performed post mortem
examination of the deceased was not cross examined regarding the mental state of the
deceased. It was held that the dying declaration was absolutely credible and conviction based
on the same could not be faulted. 4
As a general rule, oral evidence must be direct, that is to say, a fact to be proved by
oral evidence must be stated before the court by the person who has got firsthand knowledge
of the facts to be proved. A is murdered by B; C is present on the scene of murder. B is sent
up to stand his trial in the Court of Sessions Judge. In this case C may appear as a witness and
depose that he saw B assaulting A with dangerous weapon. One D may try to depose as “C

1
Ram Bihari Yadav v. State of Bihar, AIR 1988 SC 1850.
2
Nandu Ram v. State of M.P., AIR 1988 SC 512.
3
Bable v. State of Chhattisgarh, AIR 2012 SC 2621.
4
Prabin Ali v. State of Assam, AIR 2013 SC 542.

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told me that he saw B assaulting A”. Here the statement of C is direct evidence as he himself
saw the occurrence. The statement of D is second hand or derivative evidence. The second
hand evidence is loosely termed as ‘hearsay evidence’.
When a witness appears before the court to give evidence of a fact about which he has
got first rate knowledge, he has to take oath and also the opposite party is given an
opportunity to cross-examine him. At the same time, every witness must give his testimony,
under such circumstances as may expose him to all the penalties of falsehood. A second-hand
that is hearsay evidence is generally excluded from evidence on the grounds:
(1) That it is not stated on oath,
(2) That the party against whom the proof is offered, has no opportunity of cross-
examining the original source whence it is derived, and
(3) That the person putting the fact before the court is immune from all sorts of
penalties of falsehood.
In the example given above if C appears before the court, he will have to take oath
that he will tell the truth. When he has deposed that he saw B assaulting A, the counsel for B
will cross-examine him to show that he is not telling the truth. Besides this, the evidence of C
is given under personal responsibility and if he deposes falsely he may be criminally liable.
None of these sanctions can be availed of against D when he says “C told me that he saw B
attacking A”. In this case “B attacked A” cannot be stated on oath by D, He can only state on
oath that C told him like that. Again he cannot be cross examined on the fact of assault. On
every question he will plead ignorance and say that C knows it. And also there is no fear for
him to be prosecuted for perjury.
The purpose and reason of the hearsay rule are based on two considerations:
(1) A necessity for the evidence, and
(2) A circumstantial guarantee of trustworthiness.
As said above, hearsay is excluded because it is considered not sufficiently
trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible
evidence, namely the oath and cross examination. But when there are special circumstances
which give a guarantee of trustworthiness to the testimony, it is admitted even though it
comes from a second-hand source. The theory is that there are two principles as the basis of
the necessary exceptions,
(1) Necessity,
(2) Special circumstances

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Which render the evidence more trustworthy than hearsay evidence in general. It may
be impossible, or it may cause unreasonable expense or delay 'to procure the attendance, of a
witness who, if present before the Court, could give direct evidence on the matters in
question; and it may also be that this witness has made a statement either written or oral with
reference to such matter under such circumstances that the truth of this statement may
reasonably be presumed. In such a case the law as enacted by Sections 32 and 33 dispenses
with direct oral evidence of the fact and with the safeguard for truth provided by cross-
examinations, and the sanction of an oath, the probability of the statement being true
depending upon other safeguards which are mentioned in the sections. All the clauses of
Section 32 are based upon the principle that the statements are of such nature or were made
under such circumstances as to guarantee their being true. 5

Dying Declaration as an Evidence (Exception to hearsay rule)

A dying declaration is admitted in evidence on the principle “nemo moritums pressumitur


mentiri” (a man will not meet his maker with a lie in his mouth). 6
The philosophy of law, which signifies importance of dying declaration, is based on
the maxim “nemo moritusus prasumitus memrre” (no one at the time of death is presumed to
lie and he will not meet his maker with a lie in his mouth). Dying declaration does not require
any corroboration as long as it inspires confidence in the mind of the Court and it is free from
any form of tutoring. Dying declaration has to be judged in the light of surrounding
circumstances. 7
In Uka Ram v. State of Rajasthan, 8 it was held by Supreme Court that the
admissibility of dying declaration rests upon principle that a sense of impending death
produces in man's mind the same feeling as that of conscientious and virtuous man under
oath. Dying declaration is admitted upon consideration that the declaration is made in
extremity; when the maker of declaration is at the point of death and when every hope of this
world is gone; when every motive of falsehood is silenced and mind induced by the most
powerful consideration to speak the truth. The principle on which the dying declaration is
admitted is based upon the maxim ‘Nemomoriturus Praesumitur Mentire’ which means 'the

5
Soney Lal v. Daribdeo, AIR 1935 Pat 167.
6
Shakuntala v. State of Haryana, AIR 2007 SC 2709 at p. 2711.
7
Umakant v. State of Chhattisgarh, AIR 2014 SC 2943.
8
AIR 2001 SC 1814.

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man will not meet his maker with a lie in his mouth’. It has always to be kept in mind that
though dying declaration is entitled to a great weight yet it is worthwhile to note that as the
maker of the statement is not subject to cross-examination, it is essential for the Court to
insist that dying declaration should be of such nature as to inspire full confidence of the Court
in its correctness. The Court is obliged to rule out the possibility of statement being either the
result of tutoring, prompting, or conducive, or product of imagination.
By Section 32(1) two categories of statements are made admissible in evidence. They
are:-
(1) Cause of death
(2) Statement as to any circumstances of transaction which resulted in death. 9

Difference between English law and Indian Law on Dying Declaration

There are several vital points of distinction between the English and the Indian law on the
point of admissibility of dying declaration. Firstly in, England dying declaration is relevant
only in criminal cases where the cause of death is in question. In India, such statements are
admissible both in civil and criminal proceedings. Second under English law, the dying
declaration is admissible only in the single instance of homicide i.e. murder or manslaughter.
In India, cases of ‘suicide’ are also covered. Thirdly, under English law, to be relevant, dying
declaration must have been made in expectation of death. The declaration must be made at a
time when the maker is under settled and hopeless expectation of death. A declaration made
without appreciation of immediate or impending death would not be admitted, however it is
not necessary that it should come immediately after the statement. There is no such
requirement under the Indian law. If the declarant has in fact died and the statement explain
the circumstances surroundings death, the statement will be relevant even if no cause of death
had arisen at the time of the making of the statement. Fourthly, under English law, it is
necessary that the deceased should have completed his statement, before dying. In India, if
the deceased has narrated the full story, but fails to answer the last formal question as to
“what more he wanted to say”, the declaration can be relied upon.

9
Patel Hira Lal Joita Ram v. State of Gujarat, AIR 2000 SC 2944.

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Essential requirements of a dying declaration

1. A statement of dying declaration could be made to any person- a doctor, a magistrate, a


friend or near relative, a police officer. However, a statement recorded by a magistrate or
doctor is considered more reliable, and that recorded by a police officer or close relative
not (require more scrutiny). No particular form of recording a statement is prescribed.
The statement could be written, oral or even verbal (e.g. gestures). In Queen Empress v.
Abdullah, 10 where the throat of the deceased girl was cut and she being unable to speak
indicated the name of the accused by the signs of her hand, this was held to be relevant as
dying declaration.
2. The person making the statement must have died. The death need not occur immediately
after the making of the statement. However, the death must occur. If the person making
the declaration chances to live, his statement is inadmissible as a dying declaration, but it
might be relied on under Section 157 of Evidence Act to corroborate his testimony when
examined. Such a statement can also be used to contradict him under Section 145 of
Evidence Act. Further, it can be used to corroborate the evidence in court under Section 6
and 8 of Evidence Act. The fact that the person is dead must be proved by the person
proposing to give evidence of his Statement. Further, the deceased must be proved to
have died as a result of injuries received in the incident. Where A made a statement
shortly after an injury, and he was admitted in hospital and thereafter discharged, but after
5 days he died of high fever, the statement made by him is not admissible under Section
32(1) of the Evidence Act.
3. Statement must relate to the cause of his death or the circumstances of the transaction
which resulted in his death. If the statement made by the deceased does not relate to his
death, but to the death of another person, it is not relevant. 11 For example, where the wife
made a Statement that ‘her husband is killed by Z and then she committed the suicide’, is
not a dying declaration. In Palaka Narayana Swami v. Emperor, 12 the deceased made a
statement to his wife that he was going to the accused to collect money from him (the
accused being indebted to the deceased). He catch a train for Berhampur, where the
accused lived. A couple of days later, his body was found in a trunk which had been
purchased on behalf of the accused. It was held that the statement made by the deceased
10
( 1885)I LR 7 All 385
11
Ratan Gond v. State of Bihar, AIR 1959 SC 18.
12
AIR 1939 PC 47.

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to his wife was admissible in evidence under Sec. 32(1) as a circumstance of the
transaction which resulted in his death.
4. The declaration under section 32(1) must relate to the death of the declarant. In Re Dannu
Singh v. Emperor, 13 A and five other persons were charged with having committed a
dacoity in a village. A, who was seriously wounded while being arrested, made before his
death a dying declaration as to how the dacoity was committed and who had taken part in
it. Held that declaration is not admissible in evidence against the other persons, as it does
not relate to his death, but it relates to participation of his associates in the dacoity.
5. The statement must be complete and consistent, if the 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 the full story, but fails to answer the
last formal question as to what more he wanted to say, the declaration can be relied upon.
A dying declaration ought not to be rejected because it does not contain details or suffers
from minor inconsistencies. Merely because it is a brief statement, it is not to be
14
discharged. Shortness in fact, guarantees truth. Where the bride recorded two
declarations, ones to a police officer and other to a magistrate, they being similar in
material factors, evidence accepted though minor discrepancies were there 15.
6. It is necessary for the relevancy of a dying declaration that the declarant, if he had lived
on, would have been a competent witness. Thus, in a prosecution for the murder of a
child, aged 4 years, it was proposed to put in evidence as a dying declaration, what the
child said shortly before her death. The declaration was held to be inadmissible. 16 Thus, a
dying declaration of a child is inadmissible.
7. Other points-where the injured person was unconscious, dying declaration should be
rejected. 17 Where for some unexplained reasons the person who noted down (scribe) the
statement was not produced, the declaration was not accepted as evidence. 18 Where there
are more than one declarations, the one first in point of time should be preferred. 19

13
25 Cr Lj 574.
14
Oza v. State of Bihar AIR 1979 SC 1505.
15
Raoji v State of Maharashtra (1994) Cr L] 15 (SC)
16
R. v. Pike (1829) 3C&P 598.
17
Kaka Singh v. State of M.P. AIR 1982 SC 1021.
18
Govind Narain v. State of Rajasthan, AIR 1993 SC 2457.
19
Mohan Lal v. State of Maharastra AIR 1982 SC 839.

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FIR as Dying declaration

Where an injured person lodged the F.I.R. and then died, it was held to be relevant as a dying
declaration. 20A report made by the deceased relating as to the cause of his death or as to any
of the circumstances of the transaction which resulted in his death shall be relevant as dying
declaration. 21 Similarly, a ‘complaint’ made to police could be taken as a dying declaration. 22
A dying declaration recorded by police alone is relevant under Section 32(1), however, it is
better to leave such a statement out of consideration unless the prosecution satisfies the court
as to why it was not recorded by a magistrate or a doctor. 23 Only because certain names were
included in FIR but were not mentioned in dying declaration does not detract from the value
of dying declaration and would not by itself prove the falsity of the declaration.

Evidentiary Value of Dying Declaration

There is no rule of law that a dying declaration should not be acted upon unless corroborated.
But, ordinarily, it is not considered safe to convict an accused person only on the basis of a
dying declaration because of its inherent weakness:
1. It is hearsay evidence, not made on oath and its veracity cannot be tested by cross-
examination in the court.
2. The maker of such a statement might be mentally and physically in a state of confusion
and might well be drawing upon his imagination when he was making the declaration.
3. Very often, the dying man takes that last opportunity to implicate all his enemies.
4. In weighing the evidence of dying declaration, various factors or circumstances should be
taken into consideration:-
(a) Nature of its content, consistency of Statements made at different times;
(b) Capacity to remember facts; of opportunity of dying man for observation viz.
availability of light if crime done at night, to identify assailant.
(c) Proximity of time between it and the accident; whether the statement made at the
earliest opportunity and was not the result of any tutoring or prompting by interested
parties (relatives). Thus, the opportunity to consult other persons is an important factor.

20
K. Ramachand Reddy v Public Prosecutor (1976) 3 SCC 104.
21
Mahmood Ilahi v State Of U.P., 1990 CeLj 885.
22
Jai Prakash v. State of Haryana, 1999 CrLj 837 (SC).
23
Lakshmi v. Om Prakash AIR 2001 SC 2383.

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In a wife burning case, the wife remained alive for about 8 days after receiving burn
injuries, but did not tell to anybody visiting her in the hospital as to how she came to receive
the burns. When her uncle visited her she stated that her husband had set her on fire. The
Supreme Court held that statement seemed to have been tutored by the uncle. 24 However, the
mere presence of relatives is not in itself sufficient to show that the declarant was tutored. 25 I
n KR. Reddy’s case, the deceased did not disclose the name of assailants on the first
opportunity he had but until later when he made a declaration before the magistrate. It was
held that there was prompting by the cousin of the deceased, who supplied the name.
Thus, it is necessary at the dying declaration must be subjected to a close scrutiny
(proved beyond reasonable doubt) in respect of all the relevant circumstance of the case. The
declaration must be true and voluntary.

Can Dying Declaration used as a sole Basis of Conviction

In Ram Nath Madho Prasad v State of M.P. 26, the Supreme Court observed: “It is settled law
that it is not safe to convict an accused person merely on the evidence furnished by a dying
declaration without further corroboration because such a statement is not made on oath and is
not subject to cross-examination”. But by subsequent decisions, however, the Court has over-
ruled its above ruling. In case Khushal Rao v State of Bombay27, Supreme Court said that if
the statement of the deceased satisfied all the conditions (the declaration was true in all
respects) and therefore the Dying Declaration can be a sole basis of Conviction.

Conclusion

A dying declaration is considered credible and trustworthy evidence based upon the general
belief that most people who know that they are about to die do not lie. As a result, it is an
exception to the Hearsay rule, which prohibits the use of a statement made by someone other
than the person who repeats it while testifying during a trial, because of its inherent
untrustworthiness. If the person who made the dying declaration had the slightest hope of
recovery, no matter how unreasonable, the statement is not admissible into evidence. A

24
State of Assam v M Ahmed AIR 1983SC 274.
25
Habib Usman v. State of Gujarat AIR 1979S C 1181.
26
AIR 1952 SC 420.
27
AIR 1958 SC 22.

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person who makes a dying declaration must, however, be competent at the time he or she
makes a statement, otherwise, it is inadmissible. A dying declaration is usually introduced by
the prosecution, but can be used on behalf of the accused. Word “Dying Declaration” means
a statement written or verbal of relevant facts made by a person, who is dead. It is the
statement of a person who had died explaining the circumstances of his death.

The rule of Dying Declaration, in the case Kalawati v. State of Maharashtra 28, Justice
Dr. Arijit Pasayat referred to Paniben (Smt.) v. The State of Madhya Pradesh, 29 and summed
up the rule of dying declaration as follows:-

1. There is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration.
2. If the Court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration.
3. The Court has to scrutinize the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased had
an opportunity to observe and identify the assailants and was in a fit state to make the
declaration.
4. Where the dying declaration is suspicious, it should not be acted upon without
corroborative evidence.
5. Where the deceased was unconscious and could never make any dying declaration,
the evidence with regard to it is to be rejected.
6. A dying declaration which suffers from infirmity cannot form the basis of conviction.
7. Merely because a dying declaration does contain the details as to the occurrence, it is
not to be rejected.
8. Equally, merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth.
9. Normally the Court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical opinion. But where
the eye-witness said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail.
10. Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.

28
AIR 2009 SC 1932.
29
AIR 1992 SC 1817.

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11. Where there is more than one statement in the nature of dying declaration, one first in
point of time must be preferred. Of course, if the plurality of dying declarations could
be held to be trustworthy and reliable, it has to be accepted.

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BIBLIOGRAPHY

Books:-
• Lal, Mr. Batuk, The law of Evidence, 21st edition, 2016, Central law Agency,
Prayagraj.
• Malik, Mr. Abhinandan, V.P. Sarathi’s Law of Evidence, 7th edition, 2017, Eastern
Book Company, Lucknow.
• Monir, Mr. Muhammad, The Law of evidence, 10th edition, 2016, Universal Law
publishing Company, New delhi.

Websites:-

• www.indiankanoon.org
• www.manupatra.com
• www.supremecourtofindia.nic.in

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