DYING DECLARATION

A dying declaration is considered credible and trustworthy evidence based upon the
general belief that most people who know that they are about to die do not lie. As a
result, it is an exception to the Hearsay rule, which prohibits the use of a statement
made by someone other than the person who repeats it while testifying during a trial,
because of its inherent untrustworthiness. If the person who made the dying
declaration had the slightest hope of recovery, no matter how unreasonable, the
statement is not admissible into evidence. A person who makes a dying declaration
must, however, be competent at the time he or she makes a statement, otherwise, it is
inadmissible. A dying declaration is usually introduced by the prosecution, but can be
used on behalf of the accused.

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.’ It is an exception to the principle of excluding hearsay evidence rule.
Here the person (victim) is the only eye-witness to the crime, and exclusion of his
statement would tend to defeat the end of justice. Section 32 of Indian Evidence act
deals with the cases related to that person who is dead or who cannot be found.

I.1 Section 32: Cases in which statements of relevant fact by person who is dead or
cannot be found.—statement, written or verbal, or relevant facts made by a person
who is dead, or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an amount of delay or
expanse which, under the circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death.

(2) Or is made in course of business.

(3) Or against interest of maker.

(4) Or gives opinion as to public right or custom or matters.

(5) Or relates to existence of relationship.

(6) Or is made in will or deed relating to family.

(7) Or in document relating to transaction mentioned in section 13, clause (a).

(8) Or is made by several persons and expresses feelings relevant to matter in

question.

But here, we are studying about ‘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.

In Ulka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by
a person as to cause of his death or as to any circumstances of transaction which
resulted into his death, in case in which cause of his death comes in question is
admissible in evidence, such statement in law are compendiously called dying
declaration.”

The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that
‘the principle on which a dying declaration is admitted in evidence is indicated in latin
maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie
in his mouth. Information lodged by a person who died subsequently relating to the
cause of his death, is admissible in evidence under this clause.

In a leading case, wife of the accused had borrowed money from the deceased in the
sum of Rs. 3000 at the interest of 18 percent. Related to his debt a number of letters
had signed by the wife of accused which was discovered from the house of deceased
after his death. One letter which was not signed by someone had been received by the
deceased K.N. on 20th March,1937, it was reasonably clear that it would had come
from the wife of accused, who invited him to come Berhampur on that day or next
day.

Widow of K.N. had told to the court that his husband had told him that Swami’s wife
had invited him to come to Berhampur to receive his payment. Next day K.N. left his
house to go to Berhampur & on 23rd March, his body, which was cut in to seven
pieces, found in a trunk in the compartment of a train at Puri. The accused was
convicted of murder & sentenced to death because there were many evidence against
him.
In Wazir Chand v. State of Haryana in which Court observed Pakala ruling & said,
‘applying these to the facts of the case their Lordships pointed out that the transaction
in the case was one in which the deceased was murdered on 21st March & his body
was found in a trunk proved to be bought on behalf of the accused. The statement
made by the deceased on 20th March that he was setting out to the place where the
accused was living, appeared clearly to be a statement as to some of the circumstances
of the transaction which resulted in his death. Thus the statement was rightly
admitted.

In the case of R. v. Jenkins the accused was charged with the murder of a lady. He
attacked her at midnight but she had recognized her because there were sufficient
light to identify him. When magistrate’s clerk asked her about the accused to record
her statement, she told that he was Jenkins who had done the crime. The clerk asked
her that, did she make the statement with no hope of her recovery then, she replied
that she was making that statement with no hope of recovery. But when the clerk read
that statement over to her, before her signing, she told her to add the word ‘at present’
in that statement.

It was held by the court that the statement was not a dying declaration as her
insistence upon the words “at present” showed that she had some, however faint hope
of recovery.

II. Identification trough Dying Declaration

There is no particular form of dying declaration which is identified or admissible in

the eye of law. But that must be functioning as a piece of evidence with the proper
identification.

In a case, Apex court has also held that, “The crux of the whole matter was as to who
had stabbed the deceased & why. These crucial facts are to be found in the dying
declaration.”

II.1 Question answer form

Where the dying declaration was not recorded in question-answer form, it was held
that it could not be discarded for that reason alone. A statement recorded in the
narrative may be more natural because it may give the version of the incident as
perceived by the victim.

II.2. Gestures & signs form

In the case of Queen-Empress v. Abdullah Accused had cut the throat of the deceased
girl & because of that, she was not able to speak so, she indicated the name of the
accused by the signs of her hand, it was held by the full bench of the Allahabad High
Court “If the injured person is unable to speak, he can make dying declaration by
signs & gestures in response to the question.” In another case The Apex Court
observed that “the value of the sign language would depend upon as to who recorded
the signs, what gestures & nods were made, what were the questions asked, whether
simple or complicated & how effective & understandable the nods & gestures were.”

II.3. Language of statement

Where the deceased made the statement in Kannada & Urdu languages, it was held
that the statement could not be discarded on that ground alone, or on the ground that it
was recorded only in Kannada. Where the statement was in Telugu & the doctor
recorded it in English but the precaution of explaining the statement to the injured
person by another doctor was taken, the statement was held to be a valid dying
declaration.

II.4. Oral Declaration

The Apex Court emphasized the need for corroboration of such declaration
particularly in a case of this kind where the oral statement was made by the injured
person to his mother & she being an interested witness. Such declaration has to be
considered with care & caution. A statement made orally by the person who was
struck down with a lathi blow on head and which was narrated by the witness who
lodged the F.I.R. as a part of the F.I.R. was accepted as a reliable statement for the
purpose of Section 32.
II.5. Thumb Impression

A dying declaration authenticated by thumb impression was considered to be doubtful

in view of the fact that the victim had sustained 100 percent burns.

II.6. Incomplete Statement

The Apex Court had held that if a deceased fails to complete the main sentence (as for
instance, the genesis or motive for the crime) a dying declaration would be unreliable.
However, if the deceased has narrated the full story, but fails to answer the last formal
question as to what more he wanted to say, the declaration can be relied upon.

II.7. where declarer survives

In a case decided by the Apex Court, the deceased who had made the dying
declaration was seriously injured, but was conscious throughout when making the
statement. The Court held that mirror incoherence in his statement with regard to facts
& circumstances would not be sufficient ground for not relying on his statement,
which was otherwise found to be genuine.

II.8. Absence of medical statement of fitness

Where the dying declaration of a dowry victim was challenged on the ground that
doctor’s certificate of mental fitness for statement was not there, the Supreme Court
attached no importance to that omission, because the case was not wholly dependent
upon the declaration. The facts were on record showing that the injured woman had
gone to the hospital all alone changing vehicles on the way. This was sufficient
evidence in itself to show her fitness.

II.9. Where interested witnesses were attending to the deceased

The Guahati High Court has held that when the interested witnesses were attending on
the deceased when he was making a dying declaration, & because of the injuries, the
deceased was neither physically or mentally fit, no reliance could be placed on the
dying declaration, in the absence of evidence to show that the deceased was
physically & mentally capable of making the dying declaration, & was not the victim
of any tutoring.

II.10. Where statement is not relevant to the cause of death

When the person making the statement is not proved to have died as a result of the
injuries received in the incident, his statement cannot be said to be the statement as to
the cause of his death or as to any of the circumstances of transaction which resulted
in his death.

II.11. Medical Report

The doctor in the hospital clearly recorded in the Accident Register of the Hospital
that the patient was conscious, her orientation was good & that she answered well the
question put to her. Her statement could not be discarded on the basis of her injury or
post-mortem report in which it was said that having regard to the nature of injuries
sustained by the deceased, she could not have been in a position to make a statement.
Where the medical report of fitness was available to the magistrate who was to record
the statement, it was held that it was not necessary for the magistrate to make an
independent inquiry as to fitness.

II.12. Doctor’s statement

In the case of a bride burning, the doctor to whom the deceased was taken for
treatment deposed that soon after her admission, she said that her husband had poured
kerosene on her clothes and set her ablaze. The doctor made a note of it in the case
papers. The testimony of the doctor became supported by the contemporaneous
record. The Court said that the doctor had no reason to falsely depose against the
accused or prepare false case papers.

II.13. FIR as dying declaration

In K.. Ramachand Reddy v. Public Prosecutor, it was held that where an injured
person lodged an FIR & then died, it was held to be relevant as a dying declaration.

II.14. Dowry Death, wife burning etc

The death of a married woman in the matrimonial home three or four months after her
statements expressing the danger to her life has been held by the Apex Court to be a
statement explaining the circumstances of her death. In a case of wife-burning, after
recording her statement that her husband had set afire, she mercifully pleaded that her
husband should not be beaten. It was argued on this basis that she wanted to exonerate
her husband. The court replied:

This is a sentiment too touching for tears & stems from the values of the culture of the
Indian womanhood; a wife when she has been set afire by her husband, true to her
tradition, does not want her husband should to be assaulted brutally. It is this
sentiment which promoted this dying tragic woman to say that even if she was dying,
her husband should not be beaten. We are unable to appreciate how this statement can
be converted into one exculpative of the accused. In a further application of this
principle to a case arising out of “that atrocious species of murder “ , called wife
burning, the Apex Court said: “The three dying declarations corroborated by other
circumstances are sufficient in our view to bring home the offence. The counsel has
sought to discredit these declarations forgetting that they are groaning utterances of a
dying woman in the grip of dreadful agony which cannot be judged by the standard of
fullness of particulars which witnesses may give in other situations. To discredit such
dying declarations for short- falls here or there or even in many places is unrealistic,
unnatural & unconscionable, if basically there is credibility. The terrible in this case
has taken place in the house & in the presence of the husband who has been
convicted. We hardly see any reason for interfering in this conviction. In a case a
bride was 80% burnt when she had given statement to the doctors. But according to
doctors she was in a fit condition to give statement. The court said that from the fact
of 80% burns no inference was to be drawn that she could not have been capable of
making the statement. Where the declaration of the deceased wife was deposed only
by her mother, the Court held this to be not sufficient to convict.

II.15. Statements made to or implicating relatives

The Apex court laid down in the subsequent case of Barati v. State of U.P., that a
dying declaration made to the relatives of the deceased, when properly proved can
also be trusted. In this case the deceased who was killed by sprinkling acid on him
first made the statement to his brother & son, repeated it at the police station & again
at the hospital charging the accused, the court held that the statement was worthy of
credit. Where the dying statement was recorded by the wife of the deceased, the
Supreme Court did not reject it only on that ground, though it added that such
evidence should be scrutinized with care.

III. Evidentiary Value of Dying Declaration

In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was

observed as under:-

“The dying declaration is undoubtedly admissible under section 32 & not being
statement on oath so that its truth could be tested by cross-examination, the court has
to apply the scrutiny & the closest circumspection of the statement before acting upon
it. While great solemnity and sanctity is attached to the words of a dying man because
a person on the verge of death is not likely to tell lies or to connect a case as to
implicate an innocent person, yet the court has to be on guard against the statement of
the deceased being a result of either tutoring, prompting or a product of his
imagination. The court must be satisfied that the deceased was in a fit state of mind to
make the statement after the deceased had a clear opportunity to observe & identify
his assailants & that he was making the statement without any influence or rancor.
Once the court is satisfied that the dying declaration is true & voluntary, it can be
sufficient to found the conviction even without further corroboration.”

In Khushal Rao v. State of Bombay, Apex Court laid down the following principles
related to dying to dying declaration:

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no
corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other piece of evidence & has
to be judged in the light of surrounding circumstances & with reference to the
principle governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, 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 testimony which may suffer
from all the infirmities of human memory & human character.

(vi) In order to test the reliability of a dying declaration the court has to keep in view
the circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed in the night; 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; that the statement has
been consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it; & that the statement had been made at
the earliest opportunity & was not the result of tutoring by interested party.”