Dying declaration is based on the concept of the Maxim “nemo morturepraesumnturment iri” which states that a person who is about to die would not tell lie. The necessary elements for relying on the dying declaration are that;
Abovementioned are the two principles on which the concept of admissibility of dying declaration is based upon;
Section 32 (1) of the Indian Evidence Act is an exception to the principle that excludes the hearsay rule. 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.
In Uka 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”.
Dying declaration can only be taken into consideration when it is:
It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.
Kaushal Rao V/s State of Bombay,in this case, the Supreme Court has observed that it was not an absolute rule of law that other evidence must corroborate a dying declaration. A dying declaration even if uncorroborated can form the sole side basis of conviction. But each and every case must be determined based on its facts and circumstances in which the dying declaration was made. A declaration cannot be judged on some footings and on general propositions, surrounding circumstances and other piece of evidence must also be taken into consideration.
Following conditions must be fulfilled for taking a statement admissible as dying declaration-
State of Tamil Nadu V/s Karuppasamy,in this case it was held by the Apex Court that it would be improper to reject the dying declaration merely on the ground that the maker is not fit, solely based on the certificate of the doctor and where the Magistrate did not enquire independently that the deceased was in a fit state of mind or not at the time the dying declaration was made.
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 pressure or malice. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated.
Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found the conviction even without further corroboration.
There is no specific guideline or parameter to define the admissibility of a dying declaration; it can be verbal/ oral or written. It can be partly oral or partly written, at times it can be recorded when the declarant uses gestures or signs to give dying declaration, it can be in the form of question and answer. Even if the dying declaration is made in vernacular language and the same is recorded/ translated in English language, the same is considered admissible before the court of law. The declaration made orally must be taken with due care and caution. The Supreme Court held that dying declaration must be scrutinized minutely with a “microscopic eye” to make it admissible. Usually time limit is not taken into consideration; there are cases where dying declaration is considered admissible made 4 months prior to death.
Where the victim is about to die/ already dead or there is no other eye witness or even if there are some they might not come forward after the death of victim, in that situation the statement of the victim plays a very evident role. The grounds of admissibility of statement are the death of the declarant and the presumption that before dying the person would state the truth. Supreme Court has held that conviction solely on dying declaration is valid.
In case of an incomplete dying declaration, where the person dies before completing the declaration in that situation the said statement cannot be taken into consideration hence the same would be inadmissible in the eyes of law. However, if the person made incomplete statement but have made the declaration about the cause of his death and has revealed that who is the accused/ offender. In that case the question of incomplete declaration would not come into the question; otherwise the sole purpose of the dying declaration will go in vain.
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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