DYING DECLARATION

BY : AKSHAY BHASIN
# INTRODUCTION
A dying declaration is a declaration written or verbal 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

# ENGLISH LAW VS INDIAN LAW

In English law, 3 things has to proved to constitute dying declaration i.e
1. Declarant should have been in actual danger of death at the time when they were made .
2. He should have had full apprehension of his danger,
3. Death should have ensued.
Dying declaration is relevant only when person making this statement is in hopeless condition & expecting
an imminent death1 .For an instance constant reiteration of the words , I am dying, look to my childrens
was considered as sufficient words for constituting dying declaration.2
In Indian law , dying declaration is relevant whether person who makes it was or was not under
expectation of death at the time of declaration.
In India, dying declaration find its provisions u/s 32(1) if Indian Evidence Act,1872. For a statement to be
attracted u/s 32(1) , it is neither necessary that the death should have a nexus in term of a fixed time with
the statement nor that the victim who made the statement should relate to the circumstances surrounding
the event which ultimately led to death. There should be the nexus between circumstances stated by the
victim and his/her death.3

# PRINCIPLE
It is based upon the legal maxim i.e NEMO MORITURUS PRAESUMITUR MENTIRE i.e a man will not meet
his makers with a lie in his mouth. It is indicative of the fact that a man who is on death bed would not tell
a lie to falsely implicate an innocent person. Though , Declarant has no chance of cross examination ,
therefore, court insist that the dying declaration should be such which inspires full confidence of the court
of its correctness.4

# SCOPE
Dying declaration is an important piece of evidence and conviction can be solely based on Dying
Declaration. In the present days , where there is increasing numbers of dowry death, dying declaration has
assumed much importance.5 Although hearsay evidences are inadmissible but Dying Declaration is an
exception to it. It is admitted on the premises that ordinarily a dying person will not falsely implicate an
innocent person in the commission of crime.

# WHETHER CORROBORATION NECESSARY?

If court is satisfied that the declaration is true and voluntary, undoubtedly, it can base its conviction
without any corroboration. But it is not an absolute rule of law that dying declaration cannot form the sole
basis of conviction unless it is corroborated6

1
R v. Peel, 2F&f 21 ; R v. Gloster ,16 Cox 471 ; R v. Hayward, 6 C & P 160 ; R v. Jenkins, LR 1CCR 92
2
R v. Goddard, 15 Cox 7
3
Ameer Jan v. State of Karnataka,2004 AIR KantHCR 389 ; Pakala Narayana Swami. V. King Emperor, (1939) 41 BOMLR 428
4
Sharda v. State of Rajasthan,AIR 2010SC 408(412): 2007 CrLJ 3281 ; Sunder Lal v. State of Rajsathan , (2007) 10SCC 371 (375)
5
Sant Goyal v. State of UP, 1995 Cr.LJ 312,320,321(All) ;Arun Kumar V. State ,2001 (43)ACC 38(All)
6
Sham Shankar Kankaria v. State of Maharashtra , (2006) 13 SCC 165 (172): (2006) 4 Crimes 59
The rule requiring corroboration merely a rule of prudence.7 A dying declaration , as a piece of evidence
stands on same footing like any other evidence. It has to be judged and appreciated in the light of the
surrounding circumstances and its weight determined by reference to the principles governing the
weighing of evidence.

# MULTIPLE DYING DECLARATION

In case of multiple dying declaration, each have to be considered independently on its own merits as to its
evidentiary value. One cannot be rejected because of contents of others.8

# PERSON MAKING DYING DECLARATION SURVIVING

Where the declarant survives, his statement is not admissible u/s 32(1) but can dealt u/s 157 of Indian
Evidence ACT,1872 as former statement made by him in order to corroborate his testimony in court.9
When the Accused who gave the dying declaration survived, the dying declaration can be construed as
extra judicial confession and since it was made to the executive magistrate himself, it can be construed as
made in immediate presence of a magistrate and same is admissible in court.10

# COMPETENCY OF PERSONS
A dying declaration must be that of of a person competent to testify as a witness u/s 118. Therefore the
dying declaration of lunatics and children of tender age who are incompetent to testify are not
admissible. The declaration of a child of 4yrs was not admitted as he could not understand the doctrine of
a future state.11 But in an another case , declaration by a child of 10 years is held admissible in court.12

# FIRST INFORMATION REPORT

Statement recorded by a police as FIR is admissible as dying declaration if the the maker there of dies. FIR
lodged by the deceased giving details of the incident can be used as dying Declaration.13Where the injured
died during the trial and the FIR was treated as dying declaration , but prosecution made no efforts to
estabilish the cause of death or the existence of any connection between the death and the injury in
connection, the time of death death remaining unknown, statement will not be held admissible u/s 32(1). 14

# ORAL DYING DECLARATION

It has been made clear by the apex court that even though an oral dying declaration can form basis of
conviction in a given case ,but such declaration must be trustworthy & free from every blemish and inspire
confidence.15The reproduction of the exact words of the oral declaration in such cases is very
important.difference in that can detrarct materially from the value of oral; dying declaration.16The apex
court held that if the exact words uttered by the deceased are not available then the dying declaration
cannot be relied upon.17

7
Shankutla v. State of Haryana, 2007 CrLJ 3747(3749):AIR 2007 SC 2709 ;Shivappa v. State of Karnataka, 2008 CrLJ (NOC) 151 :
(2008) 3 Kant LJ 199 (Kar-DB)
8
N.V. Satyanandam v. Public Prosecutor ,AIR 2004 SC 1708
9
Gajula Surya Prakash Rao v. State of A.P., (2010) 1 SCC 88(92) : 2010 CrLJ 2102
10
Alagar v. State, (2009) 4 MLJ (Crl) 839
11
R v. Pike , (1829) 3 C & P 598
12
R v. Perkins, 9 C & P 395
13
Rajender Singh v. State, 1996 CrLJ 1560,1563 (Raj.) ; Pancham Yadav v. State of U.P, 1994 CrLJ 848,853 (All.)
14
Sukhar v. State of U.P., (1999) 9 SCC 507: AIR 1999 SC 3883 : 2000 CrLJ 29 : 1999 (4) Crimes 191
15
Darshana Devi v. State of Punjab,1996 (7) JT 269
16
Natha v. State of M.P ,2003 (2) JLJ 144
17
Waikhom Yaima Singh v. State of Manipur, 2011 (13) SCC 125
# SIGNS OR MOTIONS ARE VERBAL STATEMENT
Any adequate method of communication, whether by words or by signs are regarded as adequate dying
declaration. In Nirbhaya gang rape case , The Supreme Court relied heavily on dying declarations of
Nirbhaya, including the one made mostly through gestures, nods and jottings as she was not in a position
to speak or write properly.18

# LEADING QUESTION IN DYING DECLARATION

Leading questions cannot be asked in dying delaration. Where the deceased had burnt and put leading
questions to her as to who had burnt her, the dying declaration would not be reliable. 19

# SATISFACTION ABOUT MENTAL FITNESS OF DECEASED, DOCTORS CERIFICATE

IT is the duty of the magistrate to satisfy himself before recording the dying declaration that the declarant
was in fit mental state. Certificate of doctor is not sufficient.20 The informant who was brother of the
deceased did not disclose the fact of making dying declaration in FIR nor to doctor . The deceased suffered
extensive grevious injuries hence it cannot be ruled out that she was not mentally & physically fit to make
dying declaration. Accused is entitled to be aquitted.21

# CASES IN WHICH DYING DECLARATION HELD INADMISSIBLE

The statement of deceased person is irrelevant unless it shows the cause of death or circumstance leading
to death.22Where a letter was written by the wife to the police thatshe was financially exploited by her
husband and therby getting starveds, is not admissible as dying declaration,as it does not relate to casue of
death or circumstance leading to death.23A man shortly after an injury made a statement relating thereto
was later discharged from hospital but died of fever after few days. There being nothing to show that his
death was due to the injury inflicted , his statement was inadmissible.24

# MORE THAN ONE DYING DECLARATION

Where multiple dying declarations have been made ,each dying declaration has to be assessed and
evaluated separately and independently on its own merit, a to its evidentiary value.. One cannot be
rejected because of certain variations in the others.25

# GUIDELINES OF KUSHAL RAO CASE

The case of Kushal Rao 26set several precedents for future cases involving the dying declaration :
a dying declaration which has been recorded by a competent Magistrate in the proper manner i.e.
in the form of questions and answers, &, as far as practicable in the words of the maker of the
declaration stands on a much higher footing than a dying declaration which depends upon oral

18
State Vs. Ram Singh and another , 2014(2)ACR1615(SC), 2014iv AD (S.C.) 193, AIR2014SC1649, 2014(3)AJR469, 2014 (86)
ALLCC 637, 2014(2)BomCR(Cri)340, II(2014)CCR159(SC), 2014(3)J.L.J.R.7, JT2014(4)SC328, (2014) 2 MLJ(Crl) 137 (SC),
2014(1)N.C.C.497, 2014(3)PLJR177, 2014(2)RCR(Criminal)361, 2014(4)SCALE305, 2014 (6) SCJ 124
19
Sajjan M. Pakhare v. State of Maharashtra ,2007 CrLJ (NOC) 928 ; Gajanan Gawade v. State of Maharashtra, 2009 CrLJ (NOC)
85:2008 (6) AIR Bom R 78 (Bom-DB)
20
Shantaram Daltatraye v. State of Karnataka, ILR 2003 Kar 2838 (Kant)
21
Kuna alias Chhabmadra alias Ramesh Palaru v. State of Orissa, 2015 Cri. LJ 337 ( Ori.)
22
Naba v. Russick , 10 C 1047
23
Kantilal Martaji Pandor v. State of Gujrat, AIR 2013 SC 3055 ;
24
Abdul Gani v. R , A 1943 C 465: 1943, 1 Cal 423
25
Ashabai v. State of Maharashtra , AIR 2013 SC 341
26
Kushal Rao v. State of Bombay ,AIR 1958 SC 22
 testimony. The court observed that dying declaration that depends upon oral testimony may suffer
from all the infirmities of human memory & human character.
there is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated and therefore, a true & voluntary declaration can be sole basis of conviction,
provided, it is corroborated.
a dying declaration stands on the same footing as other piece of evidence. Therefore, it has to be
judged in the light of surrounding circumstances and with reference to the principle governing the
weight of evidence.
a dying declaration is not a weaker kind of evidence than any other piece of evidence; however,
each case must be determined on its own facts and the court must keep in view the circumstances
in which the dying declaration was made.
the court must test the reliability of the dying declaration for which it has to keep in view the
circumstances like the opportunity of the dying man for observation. For instance, whether there
was sufficient light if the crime was committed in the night. The court must also test whether the
capacity of man to remember the
facts stated had not been impaired at the time he was making the statement by circumstances
beyond his control.
the court must also test whether the statement has been consistent throughout if he had several
opportunities of making a dying declaration apart from the official record of it. Also, the statement
had been made at the earliest opportunity & was not the result of tutoring by interested party.