DYING DECLARATION

A dying declaration is a statement made by a person who is dead as to the 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 section 32 of the Indian Evidence Act, whether the person who made there was, or was not, at the time when they were made under the expectation of death and whatever may be the nature of proceeding in which the cause of his death comes into question.

Section 32(1) incorporates the principle of English law relating to what are popularly known as dying declaration. A dying declaration means the statement of a person who was died by way of homicide or suicide explaining the cause or circumstances of his death.

Q.1- When is a dying declaration admissible in the court of law?

Ans- Dying declaration is admissible only in two circumstances-

Statement of victim who is death is admissible in so far as it refers to-

1) cause of his death

2) as to any circumstances of transaction which resulted in his death. In cases of homicidal deaths, statements made by deceased is admissible only to extent of proving the cause and circumstances of his death.

Q.2- Whether dying declaration is an exception to hearsay rule?

Ans- Yes. Dying declaration is an exception to rule of hearsay and makes admissible the statement of a person who dies whether the death is a homicide or a suicide provided that the statement relates to the cause of death or exhibits circumstances relating to death. As the person is death this statement before the court would be hearsay which is excluded for the reason that party against whom it is used has no opportunity of cross examine in the original source and it is not delivered under an oath.

Q.3- What are the reasons for admitting dying declaration in evidence?

Ans- The following are the reasons for admitting dying declaration in evidence-

1) Death of declarant

2) Principle of Necessity- Such statement is admitted in evidence on the principle of necessity. The victim being generally the only eyewitness to crime, the exclusion of his statement will defeat the ends of justice.

3) It is based on the legal maxim- "Nemo moriturus praesumitur mentire” meaning- a man will not meet his maker with a lie in his mouth. Indian law recognizes this fact that a dying man seldom lies or truth sits upon the tips of a dying man.

4) Juristic Theory- the general principle on which this species of evidence is admitted is that they are the declarations made in extremity when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth.

Q.4- What is the difference between English law and Indian law regarding dying declaration?

Ans- The following are the differences-

1) Under the English law, declaration must be made under the expectation of death whereas under the Indian law expectation of death is immaterial.

2) Under the English law, dying declaration is admissible only in criminal proceedings especially in case of charge of homicide or manslaughter whereas under the Indian law dying declaration is admissible in all proceedings that is civil and criminal.

3) Under the English law, the statement must relate to the cause of his death whereas under Indian law the statement must relate to cause of his death or any of circumstances of transaction which resulted in his death.

4) English law does not include suicide whereas Indian law includes both homicide and suicide.

5) Under the English law, it is necessary that the deceased should have completed his statement before dying whereas under the Indian law 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.

Q.5- What are the essential requirements of a dying declaration?

Ans- The following are the essential requirements of a dying declaration-

1)To whom the statement is to be made and its form-

Statement of dying declaration could be made to any person whether a doctor, a magistrate, a friend on near relative or a police officer. However, a statement recorded by a magistrate or doctor is considered more reliable. No particular form of recording a statement is prescribed. The statement could be written or oral or even verbal (gestures)

Case law: Queen Empress versus Abdullah (1885)

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. The Honourable Court held that the word 'verbal' used in section 32 (1) is wider and includes word spoken by mouth and signs also.

Some crucial points-

• Possibly the declaration should be written in the exact words of the person making it. • But simply because the very words of injured are written or not, dying declaration cannot be rejected.

• When a magistrate writes a dying declaration preferably it should be in question and answer form.

2)The person making the statement must have died-

The death need not occur immediately after 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. Similarly, the 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 Section 8 of the Evidence Act.

The fact that a person is dead must be proved by the person proposing to give evidence of a statement. The deceased must be proved to have died as a result of injuries received in the incident.

Case study: Rahul 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. Whether the statement made by Rahul is admissible under section 32 (1) of the Evidence Act?

No. The statement made by him is not admissible under section 32 (1) firstly, as he died of high fever and not due to injury. Secondly the statement made by him does not relate to the cause of his death or the circumstances of the transaction which resulted in his death. Had Rahul died of injury then his statement would be admissible under section 32(1) of the Evidence Act.

3)Statement must relate to the cause of his death or circumstances of the transaction which resulted in his death-

For a statement to be admitted as a dying declaration it must relate to the cause of death or the circumstances of the transaction which resulted in the death of the person who made the statement.

Case study: Where A is assaulted and dies. Before his death he makes a statement that B assaulted him with spear. Whether the statement made by A is admissible if he dies after few days?

The statement of A is admissible as it relates to the cause of his death. The fact that the deceased lingered for some days after receiving fatal injuries does not deprive the statement of his character as a dying declaration.

Case law: Ratan Gond versus State of Bihar (1959)

Held- If the statement made by the deceased does not relate to his death but to the death of another person it is not relevant.

Case law: Kapeviah versus Emperor (1931)

Where a women is raped and makes statement that X raped her and after 3 days, she commits suicide, the rape is not the cause of a death and therefore her statement that X raped her is not admissible as dying declaration.

The circumstances of transaction resulting in death-must bear proximate relation to the cause of death or actual occurrence. The general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of that will not be admissible.

But statements made by the deceased that he was proceeding to the spot where he was in fact killed or as to his reasons for so proceeding or that he was going to meet a particular person would each to them be circumstances of the transaction.

Leading Case Law: Pakala Narayana Swami vs Emperor AIR1939 PC 47

Facts: 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 deceased. He catches 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.

Their lordships of the Privy Council held that the statement made by the deceased to his wife was admissible in evidence under section 32 (1) as a circumstance of the transaction which resulted in his death. Meaning of circumstances of the transaction was explained in this case as a phrase that conveys some limitations;

(i) it is not as broad as analogous used in circumstantial evidence which include evidence of all relevant facts (ii) it is narrower than res gestae.

Proximity test was applied in the above case i.e. circumstances must have some proximate relation to the actual occurrence. For instance, in case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose.

Leading Case Law: Sharda Birdichand Sharda vs. State of Maharashtra (1984)

The Supreme Court held that proximity depends upon the facts and circumstances of each case. Distance of time fully 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 story the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement will have to be read as an organic whole and not torn from the context.

In this case a married woman had been writing to her parents and other relatives about her critical condition at the hands of her in-laws. She lost her life some four months later. Her letters were held to be admissible as dying declaration. The court also held at section 32 (1) is applicable to cases of suicide also.

Example for better Understanding-

Where Z committed suicide as a result of ill treatment by accused that treatment was the cause though not direct cause of death. The whole affair, ill treatment and subsequent suicide being all one transaction, consequently the statement of deceased will be admissible under section 32 (1).

Case law: Ratan Singh versus. State of Himachal Pradesh(Nexus Theory)

In this case Supreme Court held that the expression circumstances of transaction which resulted in his death mean that there need not necessarily be a direct nexus between the circumstances and death. Even a distant circumstances can become admissible if it has nexus with the transaction which resulted in death.

4) The cause of death must be in question-

The declaration under section 32 (1) must relate to the death of the deceased (declarant).

Case law: Re Dannu Singh vs. Emperor

Facts: X and five other persons were charged with having committed a dacoity in a village.X 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- 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 fail to complete the main sentence (for example genesis) 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.

6) Declarant must be competent as a witness-

It is necessary for the relevancy of a dying declaration that the declared if he had lived on would have been a competent witness.

Case law: R vs. Pike (1829)3C&P 598

In a prosecution for murder of a child aged 4 years it was proposed to put in evidence as a dying declaration as what the child said shortly before her death. It was held that the dying declaration of a child is inadmissible.

Q.6- Can a FIR be a dying declaration?

Ans- In the case of K.Ramachandra Reddy vs. Public Prosecutor (1976) it was held that where an injured person lodged in the FIR and then died, it was held to be relevant as a dying declaration.

Similarly, a complaint made to police officer could be taken as dying declaration as it was held in the case of Jai Prakash vs. State of Haryana (1999).

Q.7- How one can prove a dying declaration?

Ans- When the dying declaration is verbal it can be proved by examining the person in whose presence the statement was made.

But where the dying declaration is recorded the person recording the statement is to be examined before the court and he will prove the writing before the court. if it is in writing of scribe, he must be produced and if it is verbal it should be proved by examining the person who have heard it.

Q.8- What is an evidentiary value of a dying declaration?

Ans- A dying declaration is an important piece of evidence which is found veracious and voluntarily by the court could be the sole basis for conviction.

Dying declaration if found to be voluntary and made in fit mental condition it can be relied upon even without any corroboration. However the court while admitting a dying declaration must be vigilant towards the need for compos mentis certificate from doctor as well as absence of any kind of tutoring.

The supreme court in various cases like

Kushal Rao versus State of Bombay

Kusa versus state of Orissa

P.V Radhakrishna versus state of Karnataka has dealt with the evidentiary value of dying declaration and concluded following conclusion regarding it-

1) Dying declaration can be the sole basis of conviction if it inspires of full confidence of the court.

2) 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 a result

of tutoring prompting or imagination.

3) Where the court is satisfied that the declaration is true and voluntary it can base its conviction without any further corroboration.

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

5) Where the dying declaration is suspicious it should not be acted upon without corroborative evidence.

6) A dying declaration which suffers from infirmity such as deceased was unconscious and could never make any statement cannot form the basis of conviction.

7) When the eye witness confirms that the deceased was not in conscious state to make the dying declaration medical opinion cannot prevail.

8) Even if it is a brief statement it is not to be discharged. Similarly if it does not contain all details of occurrence it is not to be rejected.

9) 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 consistent and there shall be no legal impediment to make it the basis of conviction even if there is no corroboration.

10) A dying declaration wherever possible be recorded by a competent magistrate in the form of question and answers in the words of the maker of the declarant.

11) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than the other pieces of evidence.

12) Dying declaration is equal to other evidence and has to be judged in the light of surrounding circumstances and with reference to principles governing the weighing of evidence.

13) Dying declaration is substantive evidence.

Q.9- What is the test for reliability of a dying declaration?

Ans- In Kushal Rao case it was held by the Supreme Court that in order to test the reliability of a dying declaration the court has to keep in view the circumstances like the opportunity of a 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 has been made at the earliest opportunity and was not the result of tutoring by interested parties.

Q.10- What happens when the deceased gives multiple dying declarations?

Ans- When there are multiple dying declarations each dying declaration has to be separately assessed and evaluated and assessed independently of its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other. (Case law: Ashabai v. State of Maharashtra AIR 2013)