Dying Declaration: A Cogent Analysis
Dying Declarations are the statements made by a person as to cause of his death or as to injuries which resulted in his death or the Circumstances under which the person died or the injuries which were inflicted. Or, in other words we can say, statements made by a deceased prior to his/her death resulting in his/her death is dying declaration but statements made long prior to his/her death are not considered as dying declarations and are thus not admissible in Indian Evidence Act.
Dying declaration is considered as an exception to the hearsay rule and is based on the principle “Nemo moriturus praesumitur mentire ” i.e. a man will not meet his maker with a lie in his mouth”, A declaration from a person not necessarily be from a person who is dying at the time of giving the statement but that person, in addition should know that there is impending death, or in other words the person making statement should have expectation of death.
Dying declaration is a statement made by a person who is conscious and knows that death is imminent. A dying declaration is considered to be credible and trustworthy evidence based on the general belief that “truth sits upon the lips of dying men”. But before it is relied upon, it must pass a test of reliability and the Veracity of the person making the statement must be established.
Relevant section– Section 32 (1) of The Indian Evidence Act, 1872 deals with the dying declaration.
Section 32 (1) – When it relates to cause of death.
When the statement is made by the person as to cause of his death, or as to 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.
1) Raju has been attacked and brutally beaten by Rakesh. If Raju, shortly dies because of injuries caused by Rakesh and makes declaration before his death holding Rakesh responsible. It will be considered as dying declaration.
2.) Rekha has been raped and attacked by Rajiv. Due to injuries caused to her, she dies and before dying makes declaration holding Rajiv responsible for her rape and injuries, this is a dying declaration.
3). If a person before committing suicide, makes his video naming and telling about the folks responsible for his/her death and he/she Simultaneously dies, his/her statement will be considered as dying declaration.
Requisites of a dying declaration-
1.) The person making the statement must have died
2.) To whom the statement is to be made and its form
3.) The statement must relate to the cause of his / her death or the circumstances of the transaction which resulted in death
4.) The cause of death must be in question
5.) The statement must be complete and consistent
6.) Declarant must be competent as a witness
1.) The person making the statement must have died- the death of the person making statement must occur. If the person making the declaration chances to live, his statement is inadmissible as a dying declaration. The deceased must be proved to have died as a result of injuries received in the incident.
2.) To whom the statement is to be made and its form- the statements could be made to any person, a doctor, a magistrate, a friend, a relative or even a police officer. However, a statement made to a magistrate or a doctor is considered more reliable. Moreover, there is no prescribed form of Recording a statement, however a questionnaire in tabular true/false or yes/no format is considered better.
3.) Statement must relate to the cause of death or the circumstances of the transaction which resulted in death- if the statement made by the deceased does not relate to his death, or Circumstances which resulted in his death, it is not relevant. The circumstances of transaction resulting in death must bear proximate relation to the cause of death or actual occurrence.
4.) The cause of death must be in question – the declaration u/s 32(1) must relate to the death of the declarant. If the death of the deceased is not in question and it does not relate to death and relates to participation of associates, such declaration is inadmissible.
5.) The statement must be complete and consistent- the dying declaration must be complete, consistent and veritable. If the deceased fails to complete the main sentence (such as motive of the crime, name of assaulter etc) would be unreliable. Such type of dying declaration would be unreliable.
6.) Declarant must be competent as a witness – to make dying declaration relevant it is mandatory that the deceased if he had lived on, must be a competent witness. Thus, dying declaration of a child is inadmissible.
Evidentiary Value of dying declaration-
In India, there is no law which says that dying declaration should not be acted upon unless corroborated. But usually courts don’t convict solely on the basis of dying declaration and it is considered safe to corroborate it because-
A)Its veracity cannot be tested by cross-examination in the court.
B)The maker of the statement might be mentally or physically in a state of delusion and might be drawing upon his own imagination.
C) it’s seen in various cases that the dying person takes the last opportunity to implicate all his enemies.
various other factors such as- proximity of time between it and the incident, consistency of Statements, capacity to remember facts, availability of light if the crime was done at night etc. are taken into account.
Khushal Rao V. State of Bombay
Brief facts of the case– In this case, the deceased after being allegedly assaulted by one khushal Rao, after making four separate and identical declarations before the doctor, police inspector, magistrate and to some other persons died.
Issue- Whether the accused could be convicted solely on the basis of dying declaration, or the declaration needed corroboration?
Ratio Decidendi- The Hon’ble SC held that –
1.) Dying declaration is not a weaker kind of evidence.
2.) There is no absolute rule of law that a dying declaration cannot be sole basis of conviction.
3.) Each case must be determined on its own facts.
4.) Dying declaration recorded by magistrate in question Answer format is of much higher footing.
5.) If the court is satisfied that the dying declaration is true and voluntary, than it can be the sole basis of conviction.
Thus, in the present case all these points were fulfilled and the Hon’ble Court convicted the appellant.
Sudhakar v. State of Maharashtra
Brief facts of the case– a school teacher, about 20 years was allegedly raped by the head master and Co teacher. The matter was reported to the police after 11 days. Due to humiliation, the Victim committed suicide.
Issue- Whether the accused / teacher can be convicted on the basis of dying declaration and whether such statement is relevant as dying declaration?
Judgment- The Hon’ble Court analysed few points very deeply Such as-
1.) FIR was lodged after 11 days of the incident.
2.) Witnesses turned hostile
3.) Victim/ deceased went to the school very next day of the incident.
4.) Medical reports proved that sexual intercourse had taken place but whether it was consensual or not is not clear.
5.) Moreover, she committed suicide after more than five and a half months. Thus, the prosecution failed to prove beyond reasonable doubt and the accused was acquitted by the hon’ble Court.
Patel Hiralal Joitaram V. State of Gujarat
Facts of the case– In this case, the statement made by the decreased woman in FIR, where she Wrongly mentioned the 2nd part of the name of the accused had been clarified by her by giving a clarifying statement U/s 161 of CRPC.
Issue- Whether her statement had been covered u/s 32(1) of IEA to be reliable dying declaration?
Judgment – the Hon’ble Supreme Court deeply observed the words “statement as to any of the Circumstances” and held that anything which has a nexus with the death, proximate a distant, direct or indirect, can also fall within the purview of section 32(1) of IEA. Thus, the clarificatory statement made by the deceased u/s 16l of crpc would fall within the ambit of section 32(1) of IEA.
Further, in “Laxman V. state of Maharashtra’’, the ratio decidendi was that the Doctor’s report is not essential if the person regarding the statement is satisfied that the deceased was in fit state of mind.
In “Heeralal V. State of MP“, it was held by the Hon’ble Court that it is settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused, in such cases the accused gets the benefit of doubt.
In another case i.e. ” Pakala Narayana Swami V. Emperor”, the Ratio Decidendi of the case was that if the statement made by the deceased relates to his/her cause of death or Circumstances of which resulted in death is admissible u/s 32(1) of the Indian Evidence Act, 1872 as dying declaration.
While in “Mukesh V. State for NCT of Delhi“, it was observed by the Hon’ble Supreme Court that videography of dying declaration is only a measure of caution and In case , it is not taken care of it would not be fatal for the case and does not in any circumstances compel the court to completely discard that particular dying declaration.
Further, in “Bhadragiri Venkata Ravi V. Public Prosecutor, High Court of AP,”Hyderabad”, the deceased made 3 dying declarations. In first two statements, there was no involvement of the accused/appellant but in the third statement the deceased named the appellant. The Hon’ble supreme court in these circumstances observed and held that, the third statement of the deceased may be tutored, moreover the appellant has divorced deceased 8 years back. Thus, the Hon’ble court on these facts and circumstances acquitted the accused/ appellant as there were discrepancies in the dying declarations of the deceased and her statements were not consistent.
Dying declaration is surely and perspicuously an important and significant piece of evidence. It may be the most important and pertinent piece of Evidence concerning the commission of a crime. Moreover, law of evidence makes it relevant as well as admissible. The conviction of the accused can solely be based upon the dying declaration of the deceased if it is consistent, credible, trustworthy and there are no discrepancies in it, or it is not tampered or fabricated.
Keeping in mind the basic principle of criminal law ” Hundred criminals might walk away free, but an innocent should not be punished” the courts are very cautious and it has been seen in Plethora of cases where there is inconsistency in the statements or it appears to the court that the dying declaration is tutored, the court gives the accused benefit of doubt.
Section 32 (1) of the Indian Evidence act has been beautifully written and designed. Indian Courts have also played a very important role in construing the law and making it easy for us from various judicial precedents, leading Cases and landmark judgments.
Author: Akash Dikshit,
Campus Law Centre, Faculty Of Law, University Of Delhi/ Law Student