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Critical Appraisal of Dying Declaration

Critical Appraisal of Dying Declaration

The principle on which dying declaration is admitted in evidence is indicated in legal maxim “nemo moriturus proesumitur mentiri”, meaning a man will not meet his Maker with a lie in his mouth. Read on to know more

According to Black Law dictionary, dying declaration means the statement made by a person who believes that he is about to die, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death or in reference to the person who inflicted such injuries or of a person who is charged with or suspected of having committed them. Such statements are admissible in evidence as an exception to the hearsay rule in a trial for homicide and occasionally, at least in some jurisdiction, in other cases where the killing of the declarant is the crime charged to the defendant.

Section 32(1) of the Indian Evidence Act, deal with dying declaration. It is an exception to the general rule of “hearsay” evidence, as hearsay evidence is not admissible in court of law as evidence, as it cannot be tested by cross-examination of a witness. The requirement of administering oath and cross-examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely at a time when the person making the statement is almost dying. Since he cannot be cross-examined, necessity of administering oath has been dispensed with. It is an exception to the general rule reflected in section 60 of the Evidence Act which enacts that oral evidence in all the cases must be direct and makes admissible statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of his death.

However, it has to pass the test of credibility. The exception of the hearsay evidence has been directed by necessity. The rule excluding hearsay evidence is relaxed so far as the statement contained in section 32 and 33 are concerned. The ground of admissibility of the evidence referred to these sections is that no better evidence can be produced. Section 32 and 33 deals with different circumstances in which evidence is relevant. Section 32 inter alia makes relevant the statement given by a deceased person as to the cause of his death or as to any circumstances of the transition which resulted in his death, when the cause of death comes into question, whereas section 33 makes evidence given by witness relevant, when the witness is dead or cannot be found.

Under section 32, written or verbal statements of relevant facts made by person-

  • Who is dead
  • Who cannot be found
  • Who has become incapable of giving evidence
  • Whose attendance cannot be procured without unreasonable delay or expense;

are relevant under the following circumstances: –

  • Where it relates to cause of his death
  • Where relates to circumstances which resulted in his death.
  • Statement about anything which nexus with his death is admissible as dying declaration as the words “statement as to any of the circumstances of the transaction which resulted in his death” expands the scope of admissibility.

ANALYSIS OF SECTION 32(1)

The term dying declaration has not been defined in evidence act but reading section 32(1), the term “Dying Declaration” may be defined as follows: –

“A dying declaration is statement made by a person who is dead; as to cause of his death or as to any circumstances of transaction which resulted in his death, in cases in which his death comes in question, such statements are relevant under section 32 of Evidence Act, whether the person who made there was or was not, at the time when they were made, under expectation of death and whatever may be nature of proceeding in which the cause of his death comes into question.”

Section 32 is an exception to the rule of hearsay and makes admissible, the statement of person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death or deals with circumstances leading to the death. In Uka Ram V State of Rajasthan2, it was held by the Supreme Court that the admissibility of dying declaration rests upon principle that a sense of impending death produces in man’s mind the same feeling as that of conscientious and virtuous man under oath. Dying declaration is admitted upon consideration that the declaration is made in extremity; when the maker of declaration is at point of death and when every hope of death is gone; when every motive of falsehood is silenced and mind induced by the most powerful consideration to speak truth. The principle on which the dying declaration is admitted is based on the maxim Nemomoriturus Praesumitur Mentire which means ‘the man will not meet his maker with a lie in his mouth.” Though dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subject to cross-examination, it is essential for the court to insist that dying declaration’s nature should be to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of statement being either the result of tutoring, prompting or conducive or product of imagination.

ESSENTIALS OF DYING DECLARATION
  • Who is dead- if a person making a dying declaration has chances to live, his statement is inadmissible as a dying declaration under this section, but it might be relied on under the provision of section 157, to corroborate his testimony when examined and also under section 155 for the purpose of contradiction or can be used as an admission under section 23 of Evidence act, or is relevant and admissible as res gestae under section 6 of Evidence Act. When the person making dying declaration survives, the court cannot take note of the declaration.
  • In the case of Vallon Kochol v. State3, police recorded a statement of the victim while he was being treated in the hospital, and that statement was treated as a first information report and later the declarant survived, then such statement could only be useful only to corroborate or contradict the declarant’s testimony in court. If the declarant dies, then that statement would become substantive evidence under section 32(1), as a declaration as to cause of death or as part of his conduct, under section 81. Although a dying declaration is not substantive evidence, it can be relied upon to contradict the veracity of witness.

    The statement of the deceased would be admissible if it is made with the apprehension of impending death. If the declarant survives, it is not admissible in evidence. At best it may be statement under section 164, CrPC 1973.

  • As to the cause of death- statement about anything which nexus to his death, is admissible as dying declaration as the words “statement as to any of circumstances of the transaction which resulted in his death” expands the scope of admissibility.
  • In the case Dasrath vs. State the victim received grievous injury to the intestines on 26-4-1976, and the statement about the assault was recorded by Executive Magistrate and subsequently he was discharged from the hospital, but later because of some complications, the victim was admitted in the hospital and it was found that the injury had become dangerous and he finally died on 5-7-1977, it was held that the statement of victim amounted to a dying declaration as to the cause of death.

  • Expectation of Death-A dying declaration need not have been made in expectation of death. English law admits as dying declaration only such statement of material facts concerning the cause and circumstances of homicide, as made by the victim under the fixed and solemn belief that his death is inevitable and near at hand. These principal were set out in R. V Perry where court stated “the death of the deceased was imminent at the time of declaration and to determine from the language used by the deceased, whether the statement was made at a time when the deceased had ‘a settled hopeless expectation of death’ that the deceased had abandoned all hopes of living. If this condition occurs, it is immaterial that he lingered for several days, or even weeks or that he subsequently entertained hope of survival. There must be settled hopeless expectation of death and not qualified by any prospect of recovery, however slight, as well as brief, not, indeed, in an instant or immediate death; but in an imminent and impending, as distinguished from a deferred one. The law in India does not make admissibility of a dying declaration dependent upon the person having consciousness of approach of death; even if person did not apprehend that he would die, a statement made by him about the circumstances o his death would be admissible under section 32 of the Evidence act. The section only requires that there must be statement made by person about the cause of death, for his admissibility. And it need not disclose all surrounding circumstances. Such details, which fall outside the ambit of this are not strictly within the permissible limit laid down by this subsection and unless absolutely necessary to make a statement coherent or complete, should not be included in the statement.

    For a statement to attract section 32(1) of the Evidence Act it is neither necessary that the death should have a nexus in terms of fixed time with the statement nor the victim who made the statement should essentially be in apprehension of immediate death but such statement should relate to the circumstances surrounding the event which ultimately led to death and thereshould be nexus between the circumstances stated by the victim and his/her death.

“ANY CIRCUMSTANCES OF THE TRANSACTION WHICH RESULTED IN HIS DEATH”

In Palak Narayana Swamy v Emperor, the Privy Council considered the meaning of the expression “circumstances of the transaction” occurring in section 32(1). Lord Atkins observed: “their Lordship are of the opinion that the natural meaning of the word cause has no limitation. The statement may be made before the cause of death had arisen or before the deceased has any reason to anticipate being killed. But statements made by the deceased that he was proceeding to the spot, where he was in fact killed or as to his reason for so proceeding would each be circumstances of the transaction. Such a statement might indeed be exculpatory of the person accused. ‘Circumstances of the transaction’ is a phase that no doubt conveys some limitations. It is not as broad as the analogous use in ‘circumstantial evidence’ which includes evidence of all relevant facts. It is, on the other hand, narrower than res gestae”. Circumstances must have some proximate relation to the actual occurrence; though, as for instance, in case of prolonged poisoning, they may be related to dates at a considerable distance from the actual date of actual fatal dose. It will be observed that the circumstances are of the transaction which resulted in the death of the declarant. It is not necessary that there should be known transaction, other than that by which the death of declarant has ultimately been caused, for the condition of the admissibility of the evidence is that the cause of the declarants death comes into question. In the present case, the statement made by the deceased that he was setting out to a place where the accused lived, and met a person, the wife of the accused, who lived in the house of the accused, appears clearly to be statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.”

The words “as to any of the circumstances of the transaction which resulted in his death” are wide enough to include the motive of the alleged crime. The statement may be made before the cause of death had arisen or before the deceased has any reason to anticipate being killed. The circumstances must be the circumstances of the transaction; general expressions indicating fear or suspicion, whether of particular or otherwise and not directly related to the occasion of the death, will not be admissible. The expression means only such facts or series of fact which have direct or organic relation to the death. The circumstances must have some proximate relation to the actual occurrence. Any statement made by the deceased long before the incident of murder will not be admissible.

PROXIMITY BETWEEN TIME OF STATEMENT AND DEATH

The problem of proximity was for the first time raised before the Supreme Court in Sharad v. Maharashtra. In this case, the court held that the statements were not so remote in time as to lose their proximity with the cause of death. Court stated “the test of proximity cannot be literally issued and practically reduced to a cut and dried formula of universal application. Distance of time would depend on or vary with the circumstances of each case. For example, where death is a logical consequence of a continuous drama long in process and in way a finale to the story, the statement would have to be read as an organic whole and not torn from the context. Where death takes place within a short time of marriage or the distance of time is not spread over more than 3 to 4 months, the statement may be admissible”.

Even if there is time gap between the recording of the dying declaration and the occurrence of death, this by itself will not destroy the evidentiary value of the statement. The statement does not lose its credibility if the declarant chances to live longer than anticipated. [2010]

For a statement to be attracted under section 32(1), it is not necessary that the death should have a nexus in the term of fixed time, with the statement, nor that the victim who made the statement should essentially be in apprehension of immediate death. The conditions are that the statement should relate to circumstances surrounding the event which ultimately led to death. There should be nexus between the circumstances stated by the victim and his death. In the instant case, the victim made two dying declarations to independent persons and died three months after the incident of firing due to toxaemia, still the declarations were held to be admissible.

CORROBORATION

A conviction based upon uncorroborated dying declaration is legal. But in Khusal Rao v. State of Bombay it was held, it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated each case must be determined on its own fact, keeping in view the circumstances in which dying declaration was made; it cannot be laid down as a general proposition that a dying declaration 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 principal governing the weighing of evidence. There is neither any rule nor of prudence that a dying declaration requires to be corroborated by other evidence. Where the dying declaration was true and reliable, corroboration was not necessary. Corroboration, though not essential as such, but its introduction is otherwise expedient to strengthen the evident value of the declaration. It become necessary only when dying declaration suffers from any infirmity. In the event there exists any suspicion as regards, correctness or otherwise of the said dying declaration, the courts in arriving at the judgement of conviction shall look for some corroborating evidence. In Shaik nagoor Vs. State of A.P. Supreme Court has summarised the law relating to credibility of dying declaration as follows;

  • There is neither rule of law nor of prudence that the dying declaration cannot be acted upon without corroboration.
  • If the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration.
  • The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in fit state to make declaration.
  • Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
  • Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
  • A dying declaration which suffers from infirmity cannot form the basis of conviction. g. Merely because a dying declaration does not contain details as to the occurrence, it should be rejected.
  • Equally, merely because it is brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
  • Normally, the courts in order to satisfy whether the deceased was in a fit mental condition to make dying declaration look up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
  • Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon.
  • Where there are more than one statement in nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted.
RELEVANC AND ADMISSIBILITY

A dying declaration made by person who is dead as to the cause of death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant under section 32 and is also admissible in evidence. Though dying declaration is indirect evidence being a species of hearsay, yet it is exception to the rule against the admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on facts of each case. Dying declaration is not admissible in evidence for the offence punishable under section-498-A, IPC as offence under this section does not relate to the declarant’s death.

Ground for admission of dying declaration are : firstly; necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the end of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath.

DYING DECLARATION WRITTEN OR VERBAL

A dying declaration can be written as well as oral (verbal). It is not necessary that the words should be spoken. It can be through sign also. In Queen-Empress Vs. Abdullah, the deceased made sign in response to question put to her shortly before her death established satisfactory to the mind of the court, then such questions, taken with her assent or dissent to them, clearly proved, constitute a verbal statement as to the cause of death. The question put to the injured person who is unable to speak and the signs made by him in reply, taken together, amount to verbal statements within the meaning of this section. When the dying declaration is oral, the exact words stated by deceased to the witness are of utmost important. If the witness improves upon the statement by varying their version, that evidence becomes unreliable, and the alleged dying declaration has to be eschewed. Oral dying declaration made by the deceased ought to be treated with care and caution since the make of statement cannot be subjected to any cross-examination.

The statement of a deceased person in a document, that a particular document is the copy of original, is admissible under this section as a relevant fact and also as an admission under section 21 of the Act. Letters written by the deceased wife disclosing the circumstances under which she committed suicide are admissible under section 32(1)

FITNESS OF THE DECLARANT AND MEDICAL ENDORSEMENT

At the time of declaration the person making the statement must be in a fit state of mind. Certificate from the doctor and particularly his endorsement that the patient is not only conscious but is in fit condition to record declaration is must, without which the dying declaration may be rendered heavily suspect. In Laxman V. State of Maharastra Supreme Court ruled that the absence of certificate of doctor as to the fitness of the mind of the declarant would not render dying declaration unacceptable. The essential requirement is that the person who records it must be satisfied that the deceased was in fit state of mind. Certification by the doctor is only a rule of caution. Voluntary and truthful nature of dying declaration can be established otherwise

About Author

Kushal Mangal

The author is a final year student of law from University of Delhi