Dying declaration is basically a legal term which satisfy the principal of “Leterm Mortem” which means “words said before death”. A dying declaration is a statement that is made by a declarant, who is unavailable to testify in court majorly because of death. The statement additionally relate to what the declarant believed to be the cause or circumstances of the declarant’s impending death.
From the word dying declaration it can be extracted that when the person is going to die declares so, before he is going to see the death bed, that who gave him injuries; or with which weapon; etc. which is likely to cause death or such circumstances is known as dying declaration. It is admissible in both type of proceedings i.e. either civil or criminal.
Let us understand this with illustration:
Mr. A, credited ₹50,000 to Mr. B (A’s friend), believing him to return by 10th May, along with interest. On failing of Mr. B to do so, Mr. A called Mr. B up for a meeting and Mr. B before attending the meeting told his father about this. On following day the dead body of Mr. B was found on the highway.
Here from the above illustration it can be seen that the moment when Mr. B told about his meeting with Mr. A to his father which will be consider as circumstances of this death, so as there is declaration before dying and therefore it would be admitted as dying declaration, so will be admissible before the court of justice.
Dying declaration is a statement which can be orally, like in the above illustration or it can also be in written form given or made by a person who died by explaining the circumstances of his death.
In the case of Queen v. Abdulla it was concluded that if an injured person is unable to respond, he may make his dying declaration in form of gestures and signs.
Dying declaration in India
In India section 32(1) of Indian Evidence Act, 1872 states dying declaration as:-
When it relates to 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 expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
Case: Pakala Narayana Swami vs. Emperor (1939) 41 BOMLR 428
The statement made by the deceased to his married woman that he was going to the accused to collect money from him, was held to be admissible under section 32(1). ‘A confession should be admit either in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession’.
Distinction between the English Law and Indian Law:
Under the English law, it is necessary to the admissibility of dying declaration that the declarant should have entertained a settled hopeless expectation of death, however he need not have been expecting immediate death.
Indian law doesn’t place any such restrictions.as our Indian law acknowledge this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ It is not required under Indian law that the maker should be under an expectation of imminent death, nor is it restricted to the case of homicide solely. Before a dying declaration may be admitted, it needs to be established that its maker is dead.
According to Section 32(1) itself:
1) A statement may be oral, written or even through conduct.
2) The statement must be as to:
(a) cause of death
(b) circumstances of the transaction
(c) resulted in the death
Who can record?
A dying declaration is to be recorded by Special Executive Magistrate, who is also needed to ascertain whether or not the victim is in a condition to record the statement of the declarant. A doctor is required to provide a fitness certificate to support the findings, still with the absence of the fitness certificate, the declaration can be considered reliable and truth worthy, given the victim was in a fit condition to make the statement. If the statement made by the victim lack the signature of the deceased and no explanation is given for the same, conviction cannot be based on it.
- Dying declaration recorded by a doctor or a police officer
Wherein a dying declaration was recorded by a doctor in the form of question and answers in the presence of another witness, it was held that it was sufficient to convict the accused. A dying declaration recorded by a police officer attracts suspicion but it is not a ground for inadmissibility. However, during emergencies it can be recorded without calling a doctor or magistrate. The Court is more cautious while reviewing dying declaration recorded by police officers.
- Dying declaration made to a relative
In a matter of dowry death, it was held that dying declaration cannot be rejected merely on the grounds that it was made to a relative. The Court is more cautious when they review such declaration.
- FIR as dying declaration
In K.. Ramachand Reddy v. Public Prosecutor, it was held that where an injured person lodged an FIR and then died, it was held to be relevant as a dying declaration.
Can dying declaration be admissible even when the person is alive?
In dying declaration the main focus is on the person who is going to die. So in case the person giving the statement before his death either oral or written or through the conduct, and by chance if he/she survives even after that statement, then in that case that statement would not be consider as dying declaration because the main element i.e. death is missing. Therefore that given statement would be consider as a normal statement given by a normal person and will not be consider as dying declaration.
It can be seen in many judgments that depending upon the reliability of the case, dying declaration could be the sole basis for the person to get the punishment. This is based on the maxim ‘nemo mariturus presumuntur mentri’ which says that “a man will not meet his maker with lie on his mouth”. It can be extracted that dying declaration can be in any form but it must be duly checked and must be proved by the magistrate of the court so to make it admissible as “Dying Declaration”
Author: Priyanshi Bhardwaj,
Trinity Institute of Professional Studies