1.

INTRODUCTION

Section 32(1) of the Indian Evidence Act is an exception to the principle that excludes the hearsay rule.
Principle behind the concept of dying declaration is that the person having the first hand information about a
particular matter, however due to death or any kind of disability is unable to appear before the court, then
his/ her knowledge/ information should be transmitted to the court through some other person . This Section
plays a significant role when the person having a particular knowledge is sought to be proved died or cannot
be found or due to any reason his attendance cannot be procured in the Court. However, proof must be
produced before the Court that why person could not be present to give evidence. Further Supreme Court of
India has held that a dying declaration made by a victim, accusing a person of having been responsible for
his/her death cannot form the basis of conviction if it suffers from infirmity.

The statement made can be verbal/ oral connected to the circumstances of transaction that resulted the death
caused to that person; such statement must be made before dying known as “dying declaration”. Such
statement plays relevancy when the person who is making the statement, is under expectation of death,
irrespective of the nature of proceedings in which the cause of death comes into question. If the declarant
survives after making the statement then it is inadmissible as dying declaration but the statement can be used
under section 157 of the Indian evidence Act, in order to contradict, corroborate, impeach or confirm the
credit of the person by whom it was made.

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 1.1 MEANING

The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means ''a man
will not meet his maker with a lie in his mouth''. A dying declaration is called as ''Leterm Mortem''. The word
''Leterm Mortem'' means ''Words said before death''. Recording of dying declaration is very important task.
Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by
the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains
its full value.
“Nemo moriturus praesumitur mentire”. No one at the point of death is presumed to lie." "A man will not
meet his Maker with a lie in his mouth" -- is the philosophy in law underlying admittance in evidence of
dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at
that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending
death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or
circumstances leading to his death. A dying declaration, therefore, enjoys almost sucrose not status, as a
piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying
person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the
Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the
dying declaration is true and free from any embellishment such a dying declaration, by itself, can be
sufficient for recording conviction even without looking for any corroboration"--is the statement of law
summed up by the Supreme Court.
Dying declaration is admissible in evidence. A dying declaration, if found reliable, can form the basis of
conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for
finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece
of 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.

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 1.2 SCOPE

Under common law, a statement made by a person on the point of death is admissible in evidence even if it
is hearsay. That is, if X told Y that Z had stabbed him, then if Y told a court under oath what X had said, this
may be admissible evidence against Z. The reason this is acceptable, while other forms of hearsay are not, is
that it is assumed that a person who is dying, and knows this to be the case, is unlikely to lie. To be
admissible, the declaration must be made by a person who has a genuine believe that death is imminent. The
believe need not necessarily be reasonable, and he may subsequently recover. Of course, if he does then he
would be expected to testify himself.

It becomes relevant under section 32 (1) of the Evidence Act. It is an exception to the rule of hearsay and
makes admissible the statement of the deceased whether the death is homicidal or suicidal provided the
statement relates to the cause of death or exhibits circumstance leading to his death. Greater solemnity and
sanctity are attached to the words of a dying man because a person on the verge of his death is not likely to
tell lies or to concoct a case as to implicate an innocent person but the court has to be on the guard against
the statement of the deceased being a result of either tutoring, prompting or a product of his imagination.
The court shall also be satisfied that the deceased was in a fit state of mind to make the statement after he
had a clear opportunity to observe and identify the assailants. Once the court is satisfied about its
authenticity and voluntariness, the court can found a conviction on the basis thereof in the absence of any
corroboration.

The phrase 'dying declaration' is not used in s 32 of the Indian Evidence Act. The head note of the relevant
section reads as cases in which the Statement of Relevant Fact by Person is who is dead or cannot be found
etc, is relevant. The section as a whole deals with the relevant facts originating from a person who is dead or
who cannot be found or who has become incapable of giving of evidence or whose attendance cannot be
procured without an amount of delay or expense, which, under the circumstances of the case, the court
considers, unreasonable.

Dying declaration considered as hearsay because the person who made such a statement is not available
before the court to depose. In addition, the person who heard from such a dead person and who appears
before the court to depose the facts in question is not in a position to vouchsafe whether those facts which he
heard, from the dying person are true or not.

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 1.3 SECTION 32(1)

‘Dying declaration’ which deals with the cases relate to cause of death. It is mentioned in sub-section (1) of
section 32 of Indian Evidence act.

Section 32 (1) 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 exception of death, and whatever may be the nature of the proceeding in which the cause of his
death comes into question.

Illustration

The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether
A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to cause of his or her death, referring respectively to the murder, the rape and the
actionable wrong under consideration wrong under consideration are relevant facts.

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 2. FORMS OF DYING DECLERATION

2.1 ORAL DYING DECLARATION

‘Oral’ means by words. It is not necessary that the dying declaration shall be in a written form or a question
answer form. Where the dying declaration is oral , the exact words stated by the deceased to the witness are
of utmost importance. In order to be acted upon, the evidence with regard to an oral dying declaration should
be subjected to strictest and closest circumstances. Where the oral dying declaration is found true and gets
corroboration from material particulars available on record it can form the basis of conviction of an accused.

Where dying declaration is oral and recorded, and is found true and trustworthy, it can form the basis of
conviction. An oral dying declaration alleged to have been made by the deceased, should be scrutinised
cautiously. Where oral dying declaration gets corroboration from written dying declaration, it can form the
basis of conviction. A dying declaration recorded by a magistrate, carries mush weight, as it stands on a
much higher footing than a dying declaration dependent upon oral testimony, which is fallible to all the
infirmities of human memory.

An oral dying declaration that creates a doubt is not worthy of credence. Where an oral dying declaration is
corroborated by the testimony of more than one independent witnesses, it cannot be rejected merely on the
ground that the ability of the declarant to make an oral dying declaration was not supported by medical
evidence. Where the evidence regarding the dying declaration is reliable and believable, even an oral dying
declaration can form the basis of conviction.

Where only close relations arrived on the spot on hearing the shout of the victim and no independent witness
arrived on the spot, oral dying declaration made to the relation-witnesses was believed and the accused was
convicted. Even when the dying declaration made to the doctor has not been recorded in the form of question
and answers and in the words of the declarant, the dying declaration can be treated as oral testimony by the
deceased as to the cause of his death and the circumstances of his transaction which resulted in his death,
thus becomes a relevant fact when the cause of death of deceased is in question.The dying declaration of oral
nature is generally considered a weak type of declaration.

2.2 STATEMENT BY SIGNS AND GESTURES

Signs made by an injured person either by a nod of the head to indicate assent or by the sign or motion of
fingers or hand in answer to questions put to him for finding out the identity of the individual causing the

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injury amounted to verbal statement within the meaning of this clause. A reply made by signs, by a person
unable to speak, in answer to a question put to him, taken together with the question amounts to a verbal
statement.

This was laid down by the Full Bench of the Allahabad High Court in Queen- Empress v. Abdullah [I.L.R.
(1185) 7 All.385] 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, that held to be relevant as dying declaration

Where a person was tried for the murder of one D. The deceased had been questioned by a police officer, a
magistrate and a surgeon; the deceased was unable to speak, by reason of a wound in the throat but was
conscious, and able to make signs. Evidence was offered and admitted to prove the question put to D, and
the signs, which she had made in answer to such questions. The evidence was held to have been rightly
admitted, as the questions and the signs, taken together might properly be regarded as a 'verbal statement'
within the meaning of this sectionDying declaration recorded on the basis of nods and gestures is not only
admissible but possesses evidentiary value.

2.3 WRITTEN DYING DECLARATIONS

The statement of a deceased person in document is known as dying declaration in writing. It is seen in very
few cases that there comes before the court any dying declaration written by the deceased. It is because the
condition of the deceased, most of the times is very sensitive and serious where he is not really in a state or
in a position to write down the causes and circumstance leading to his death or condition. It is because of this
that the practice of oral dying declaration and by gestures and signs was encouraged and admitted by the
courts.

Letters written by a deceased disclosing the circumstances and cause of his or her death is also admissible
under section 32(1). Moreover, a particular document which is the copy of the original is also admissible
under this section as a relevant fact and also as an admission under section 21 of the Indian Evidence Act.

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 3. REQUISITES OF DYING DECLARATION
3.1 STATEMENT MUST BE COMPLETE

Whatever the declaration may be, it must be complete in itself, for, if the dying man appears to, have
intended to qualify it by other statements which he is prevented by any cause from making, it will not be
received. But where the dying declaration, though incomplete otherwise, by reason of the deceased not being
able to answer further question, but is complete so far as the accused having murdered the deceased was
concerned, it can be relied upon by the prosecution.[Abdul Sattar v. State of Mysore AIR 1956 SC 168]. The
statement offered must not be merely a part of whole as it was expressed by the declarant, it must be
complete as far as it goes. But it is immaterial how much of the whole affair of the death is related, provided
the statement includes all that the declarant wished or intended to include in it.

Thus if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly short of
what the dying person wished to make, the fragmentary statement is not receivable, because the intended
whole is not there, and the whole might be of a very different effect from that of a fragment; yet if the dying
person finishes the statement he wishes to make, it is no objection that he has told only a potion of what he
might have been able to tell

The dying declaration gave a very detailed and graphic narration of the entire history of the case, starting
from the motive, the enmity and the minute test features of the assault excluding the individual acts
committed by the accused. It is impossible in such a case to believe that that the deceased even if conscious
would have made such a detailed statement. This statement smacks of concoction and falsification, hence the
dying declaration is to be included in such a case.[Mohar Singh v. State of Punjab AIR 1981 SC 1578].

In the dying declaration, the deceased has categorically mentioned the name of his own son as assailant; has
also stated that he was stabbed twice with knife; the motive for stabbing him; the time and place at which he
was stabbed. The declaration is to be accepted as true even though there is no medical opinion that the
deceased was in a fit state to make the declaration.[Mohd. Azzezuddin v. State of A.P. 1985 Cri.L.J. 336]

3.2 DETAILS IN DYING DECLARATION

A dying declaration is not to be discarded for lack of details of the occurrence or on account of brevity of the
statement when the deceased was in great agony at the time of making the statement. But a dying declaration
cannot be made the basis for conviction when it suffers from infirmities and improbabilities. The time when
the dying declaration is recorded should also be mentioned in the dying declaration. The time so given
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would enable the court to know about the gap between the recording of the declaration and the expiry of the
deceased, which would throw considerable light on the physical and mental condition of the maker of the
statement at the crucial time

3.3 COMPETENCY AND CREDIBILITY

The person, whose declaration is thus admitted, is considered as standing in the same situation as if he were
sworn as a witness. It follows, therefore, that when the declarant, if living, would have been incompetent to
testify by reason of imbecility of mind, or tender age, his dying declaration are inadmissible. And his
credibility may be impeached or confirmed in the same manner as that of a witness.

In order to test reliability of a dying declaration the court has to keep in view the circumstances like
opportunity of the dying man for observation. When dying declaration creates doubt, it needs corroboration
to form the basis of conviction. Though a dying declaration recorded by the investigating officer in hospital
is admissible the prosecution has to justify the court as to why better and more reliable method of recording
a dying declaration could not be taken recourse to. Dying declaration shall, whenever possible, be recorded
by the magistrate and the person making dying declaration shall, if possible, be examined by medical officer.

3.4 FITNESS OF THE DECLARATION

While making the dying declaration, the state of mind of the declarant is to be given prime importance only
if he is in a state to make a statement shall his statement be recorded and it is only when he has the mental
faculties active that the dying declaration is to be held valid. If the consciousness state and the good mental
condition of the declarant is certified by the doctor and the answers to the questions are given in a coherent
manner, its veracity cannot be affected by the reason of certain infirmities in it.

If the dying declaration is recorded after obtaining the fitness certificate from the doctor and the
endorsement is also obtained after recording the declaration, then in that case the dying declaration is
admissible. But the supreme court has also delivered a different view in a number of cases, where it has
stated that the certificate of the doctor as to the mental health is not sufficient and the magistrate must
ascertain the declarant’s mental health, where the magistrate failed to do so and the declarant was not giving
coherent and consistent statements in response to his questions which also were not recorded, in these
circumstances the dying declaration is held to be unreliable.

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 3.5 IPSISSIMA VERBA

A declaration should be taken down in the exact words, which the person who makes it uses, in order that it
may be possible from those words to arrive precisely at what the person making the declaration means.
When a statement is not the ipsissima verba of the person making it, but is composed of a mixture of
questions and answers; there are several objections open to its reception in evidence, which, it is desirable,
should not be open in cases in which the person has no opportunity of cross¬-examination. In the first place,
the questions may be leading questions, and in the condition of a person making a dying declaration there is
always very great danger of leading questions being answered without their force and effect being freely
comprehended. In such circumstances the form of the declaration should be such that it would be possible to
see what was the question, and what was the answer, so as to discover how much was suggested by the
examining magistrate and how much was the production of the person making the statement

It must be shown that the deceased himself dictated the statement and that he did not make the statement in
answer to any questions and there must be guarantee that the dictation has been taken down correctly.
Usually the best way to establish this is to show that the dictated statement was read over to the deceased
and admitted by him to be correct. It is of paramount importance that the actual words of dying declaration
were reproduced before the court as far as practically possible. When not recorded in the words of the
maker, the court should subject it to proper scrutiny. Dying declaration which is not in deceased’s own
words but mere note of the substance of what he stated is unsafe for conviction.

Persons recording the dying declarations should bear in mind that the object to get from the person, the cause
of death or circumstances which resulted in death, long statements of incidents before the actual assault
should not be included

The rule of ipsissima verba is no doubt a salutary rule, but it cannot be held that unless the actual words of
the declarant are repeated by each witness, it is not possible for a court to come to the conclusion that the
declarant made a declaration or what the import or the meaning of the declaration was. The dying
declaration should however be taken in the exact words of the person making it. In case of an oral
declaration, unless one is certain about the words uttered by the deceased, it will not be safe to place reliance
upon them and the dying declaration cannot be acted upon without sufficient corroboration. If the answers
are given by gestures then their interpretation rests with the court.

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 4. EVIDENTRY VALUE OF DYING DECLARATION

The principle on which dying declarations are admitted in evidence is based upon the legal maxim “nemo
moriturus praesumitur mentire” i,e., a man will not meet his maker with a lie in his mouth. Before relying
upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make
the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by
any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring
corroboration is not a rule of law but only a rule of prudence.

The human mind is constituted to be inclined to attach a very high degree of importance to a dying
declaration. But there is no rule of law that a dying declaration cannot be acted upon unless it is corroborated
where in a bridge burning case a dying declaration was made but the persons named in the dying declaration
were not examined by the prosecution. A dying declaration stands independently as a good piece of evidence
for sustaining a conviction, if it is found to be true and free from infirmity, and corroboration need not be
sought for. Necessity for corroboration arises only where the dying declaration presents suspicious features
and infirmity. Where dying declaration is suspicious, it should not be relied upon without strong and
convicting corroborative evidence.

It is absolutely necessary for the protection of society that dying declarations should be received, for
otherwise a premium would be held out for the commission of crime. It is the nature of crimes of violence
that they should be committed with the greatest possible secrecy; and thus, it must sometimes occur that the
only testimony, often only direct testimony against an accused is to be found in the dying declaration of his
victim. That is why the law made it a relevant fact, and usually a dying declaration, which records the very
words of the dying man unassisted by interested persons, is most valuable evidence.

Keeping in view the circumstances in which the dying declaration was made. It cannot be laid down as a
general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. It
stands on the same footing as another piece of evidence and has to be judged in the light of surrounding
circumstances and with reference to the principles governing the weighing of evidence. The rule requiring
corroboration is a rule of prudence, and it has been held in a number of cases that there is no rule of law
which requires that a dying declaration should not be acted upon unless it is corroborated. A dying
declaration if acceptable provides a safe ground for conviction of the accused and a court need not look for
any corroboration thereof. [State v. Kanchan AIR 1954 All 53]

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Dying declarations to be relied upon should be of such a nature as to inspire full confidence of the court in
their correctness. Such statements should also be corroborated from other circumstances and the evidence on
record. It has to be established beyond reasonable doubt that the maker of the statement had the opportunity
to identify the assailants. If on close scrutiny of the dying declaration, there emerges any element of doubt
about the opportunity of the maker to identify the assailants, it will not be safe at all to place implicit reliance
on the dying declaration for the conviction of the accused.

The dying declaration must have been made at the earliest opportunity and it must not be the result of
tutoring by interested parties. Where the court is entirely satisfied with regard to the truth and genuineness of
an uncorroborated dying declaration, there is nothing to prevent it from regarding such a dying declaration as
sufficient to sustain a conviction. There is no absolute rule that a dying declaration should not be acted upon
for the purpose of convicting an accused person even if uncorroborated, provided that the court is fully
satisfied that it is true. But, before so acting on it, the court will apply to it every test of its genuineness, and
good faith, which is possible in the - circumstances of the case to apply.

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 5. ADMISSIBLITY OF DYING DECLARATION

A dying declaration made by a person as to his cause of death or any of the circumstances of the transactions
which resulted in his death, in cases win which the cause of death comes into question, is relevant under
section 32 and is also admissible in evidence. though dying declaration is indirect evidence being a piece of
hear say, yet it is an exception to the to the rule again admissibility of hearsay evidence. indeed, it is
substantive evidence and like any other evidence requires no corroboration for forming the basis of
conviction of the accused. But then the question as to how much weight can be assigned to the dying
declaration is a question of fact and has to be determined on the facts of each case.

Following conditions must be fulfilled to taking a statement admissible as dying declaration-

1. The declarant must about to die- That the person who has made the statement must be dead otherwise
statement could not be taken into consideration as the name itself suggests “dying declaration”.

2. The declaration made must be in context to the cause of the death- Any statement made that has co-
relation with the death of the declarant is considered admissible.

3. Cause of death must be in question- It is essential condition that the person who is about to die, his/ her
death must be in question.

4. Injury caused- That the injuries that are caused to the declarant must be the cause of the death of him,
otherwise said statement cannot be taken into consideration.

5.1 CORROBORATION OF DYING DECLARATION

It is well settled that there is neither a rule of law nor a rule of prudence which has hardened into a rule of
law that a dying declaration cannot be acted upon unless it is corroborated. Dying declaration can be
accepted even if it is not corroborated by other evidence the basic principle is that the court must not look for
corroboration unless it suffers from any infirmity Once the court comes to the conclusion that the declaration
is a truthful version, there is no question of further corroboration [Kushal Rao v. State AIR 1958 SC 22].

Section 32 does not require a statement to be made in expectation of death . When a person who had made a
statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible
under section 32 It has also been held in other cases that a dying declaration may require corroboration
according to the circumstances of the case and the nature of the evidence of it .

A conviction based upon uncorroborated dying declaration is legal. There is neither rule of law nor of
prudence that a dying declaration requires to be corroborated by other evidence. where the dying declaration
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is true and reliable, corroboration is not necessary. Corroboration will not be necessary if the dyiong
declaration is complete in its accusation and there is nothing to show that the maker of the statement had
anything further to add. Corroboration for dying declaration becomes necessary only when it suffers from
infirmities.

5.2 DYING DECLARATION AS SOLE BASIS OF CONVICTION

Dying declaration if found to be true and voluntary, can form the sloe basis of conviction and needs no
corroboration. Such a statement is admissible not only against the person actually causing death but also
against other persons participating in causing the declarant’s death. The declarations having not been
recorded in question- answer form is no ground to discredit it.

5.3 DYING DECLARATION AND MEDICAL EVIDENCE

Merely because a dying declaration is not accompanied by a medical opinion that the deceased when made
the statement was in a fit state of mind, it doesnot affect the reliability. The fact that the dying declaration is
produced only during the trial is immaterial, if it is corroborated by the evidence of the prosecution
witnesses and the evidence of the doctor.

Where the medical evidence showed that the deceased received such injuries that he could not survive for
more than 10-30 minutes, but the dying declaration was proved by the direct evidence of the eyewitnesses,
the Supreme Court held that the medical evidence could not wipe out the dying declaration. The dying
declaration was believed and the accused were convicted for charge of murder under s 302, IPC.[ Nanahau
Ram v. State of Madhya Pradesh AIR 1988 SC 912]

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 6. EXCEPTIONS OF DYING DECLARATION

The exceptions of ‘Dying declaration’ stipulate that where the statements made by dying persons are not
admissible:

1. If the cause of death of the deceased is not in question: If the deceased made statement before his death
anything except the cause of his death, that declaration is not admissible in evidence.

2. If the declarer is not a competent witness: declarer must be competent witness. A dying declaration of a
child is inadmissible. In Amar singh v. State of Madhya Pradesh,1996 Cr LJ (MP) 1582, it was held by M.P.
High Court that without proof of mental or physical fitness, the dying declaration was not reliable

3. Inconsistent declaration: Inconsistent dying declaration is no evidentiary value.

4. Doubtful features: In Ramilaben v. State of Gujarat it was held by the court that second degree burn
injuries, the injured dying 7-8 hours after the incident, four dying declarations recorded but none carried
medical certificate. There were other doubtful features, evidence not taken into account.

5. Uninfluenced declaration: it must be noted that dying declaration should not be under influence of any
one.

6. Untrue declaration: it is perfectly permissible to reject a part of dying declaration if it is found to be untrue
& if it can be separated.

7. Incomplete declaration: dying declaration must be complete.

8. if the statement relates to the death of another person: If the statement made by the deceased does not
relate to his death, but to the death of another person, it is not relevant.

9. Contradictory statements: if a declarant made more than one dying declarations & all are contradictory,
then those all declarations lose their value.

10. Unsound person: where the married dying of burns was a person of unsound mind & the medical
certificate vouchsafed her physical fitness for a statement & not the state of mind at the crucial moment, the
court said that the statement could not be relied upon.

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 7. CONCLUSION

Word “Dying Declaration” means a statement written or verbal of relevant facts made by a person, who is
dead. It is the statement of a person who had died explaining the circumstances of his death. This is based on
the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth.
Our Indian law recognizes this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying
man.’

There are different opinions of courts on the question whether dying declaration must be considered as a
whole or also admissible if made in parts. As per the opinions of experts on this issue, the conclusion drawn
by them was that the statement made by the victim must make sense even if made in parts.

Taking a note of the above mentioned discussion and opinions of various courts and experts, it is concluded
that whenever a dying declaration is to be recorded it must be done minutely after proper scrutiny, keeping
in mind that court will attach it as a piece of evidence. In case where there is more than one dying
declaration and there is inconsistency between the statements, then it is not safe to convict the person on
such discrepant declaration made while dying by the declarant .

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