What is dying declaration?
Dying declaration means the statement of a person who has died explaining the cause or circumstances of his/her death.
According to Sec 32(1) of the Indian Evidence act, such statements are relevant by a person who is conscious and knows that death is imminent and makes statement or explain reason concerning his death.
It is believed in Indian law that a person won’t lie before his death. Dying men seldom lies. This is based on a maxim Nemo moriturus presumntm mentri (no one when about to die is presumed to lie).It can be made oral or written and can be recorded by anyone whether it’s a friend ,relative , police, doctor or magistrate but its evidentiary value increases when recorded by magistrate. There is no particular form of recording the statement. A dying declaration is usually initiated by prosecution but can be used on behalf of accused.
The person must have died
Proof of a person’s death will have to be offered to make the statement relevant as dying declaration.
Sometimes the person survives in that case his statement becomes inadmissible as dying declaration, but it might be relied on under Sec 157 to corroborate his testimony when examined and can also be used to contradict him under Sec 145.
Exception to rule of hearsay
Sec 32 provides an exception to the rule of hearsay evidence which prohibits the use of a statement made by someone other than person who repeats it while testifying because of its inherent untrustworthiness, but since that (victim) because of death couldn’t appear before court ,exclusion of his statement would tend to defeat the end of justice. This is based on the principle of necessity and convenience.
Statement must relate to cause of death
The statement made by deceased should relate to his death and the circumstances resulting in death must bear proximate relation to the cause of death.
In Palaka Narayana Swami v Emperor (AIR 1939 PC 47) the statement made by the deceased to his wife that he was going to the accused to collect money from him was held to be admissible under Sec 32(1).
Since it is hearsay evidence , not made on oath and can’t be cross examined in court solely relying on it can’t considered to be safe. Thus it is necessary that dying declaration must be subjected to close scrutiny and must be true and voluntary.
In Khushal Rao v State of Bombay (AIR 1958 SC 22) SC laid down certain principles:
- There is no rule that dying declaration can’t be sole basis of conviction, each case must be determined on its own facts keeping circumstances in which it was made.
- Declaration must be recorded, though can be recorded by police, doctor but its evidentiary value increases if recorded by magistrate.
- Dying declaration is not weaker evidence than any other evidence it stands on same footing.
- If a declaration recorded by magistrate in proper question answer form and in words of maker stands on higher footing than the one which depends upon oral testimony.
- Necessity for corroboration arises when court in any case comes to the conclusion that a particular declaration is not free from infirmities.
So, if the court is fully convinced of the truth of statement and there is no suspicion as to its credibility, then the court can declare conviction on the basis of dying declaration.
F.I.R as dying declaration
If a person lodged F.I.R and then he died, it was held to be relevant dying declaration. In [K.Ramachand Reddy v Public Prosecutor (1976)3 SCC 104] held to be relevant as dying declaration. Similarly, a complaint made to police could be taken as dying declaration.
An expectation of death not necessary
In Indian law, the expectation of death is not mandatory. In Palaka Narayana Swami v Emperor , it was held that letter given by deceased to wife before going to place where he was killed was relevant there was no expectation of death before that .Hence, statement as to any of circumstances of the transaction which resulted in the death could be included. Imminent or danger of death doesn’t affect the admissibility if dying declaration but it can have effect on its credibility.
Points to remember:
- If the victim is not able to speak, gestures or signs can be taken as evidence and they can form dying declaration.
- Dying declaration can be recorded in any language; court cannot disregard the dying declaration on the sole basis of language. It’s not mandatory that it has to be in the language of the court, can be in the language of the deceased but has to be interpreted in the language of court to produce it as an evidence.
- If the deceased couldn’t narrate the main sentence (for e.g. motive for the crime) , then the dying declaration would be unreliable. The dying declaration also can’t be rejected because it doesn’t contain details or suffer from minor inconsistencies as in the case of[Oza v State of Bihar AIR 1979 SC 1505].
- If the person is not conscious or injured , dying declaration should be rejected. Usually the court to satisfy that whether the deceased was conscious or not looks upto medical opinion . The court said what is required is the person who records the statement must be satisfied that injured person was in fit state of mind , doctor’s certification is just a rule of caution. Mere non examination of doctor whose presence the dying declaration was recorded doesn’t affect its evidentiary value.
- Dying declaration must have proximate relation to actual occurrence , it is narrower than res gestae it will be observed that the circumstances of the transaction which resulted in death of the declarant.
- In case of multiple dying declaration the court would see whether there is consistency in all the dying declaration and can be relied if they are consistent and if not, then court will examine the facts of the case or can examine the statement of other witness to ascertain the truth of the case.
Author: Aditi Trivedi,
Intern at Lawportal,
Email: [email protected]
Author: Aditi Trivedi,
Faculty of law, Delhi University ,1st year law student