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CONTENTS
INTRODUCTION ....pg.2
HOW A DYING DECLARATION SHOULD BE.......pg.3
WHO MAY RECORD A DYING DECLARATION.......pg.4
IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING
DYING DECLARATION ....pg.5
TABLE SHOWING THE CONDITIONS FOR ADMISSIBILITY AND
EVIDENTIARY VALUE OF A DYING DECLARATIONpg.5
DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST
HEARSAY...pg.11
DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW
a) Sense of Impending Death...pg.12
b) Scope of Application...pg.13
c) Evidentiary Valuepg.14
d) Competency Of The Declarant....pg.14
RELEVANCE OF DYING DECLARATION
a) Basis of Dying Declaration : How Problematic?................pg.16
b) Evidentiary Value to be Attached to A Dying Declaration.pg.18
c) Procedures and Precautions....pg.21
JUDICIAL GUIDELINES ON DYING DECLARTIONpg.28
CONCLUSION.pg.30
BIBLIOGRAPHY.pg.31
INTRODUCTION
3.Id.
belief of the olden days. The necessity being, that in cases, where victim is the only
eye-witness to the crime, the exclusion of his/her statement might defeat the ends
of justice. The religious sanction behind their admissibility comes from the belief
in the fact, that a sense of impending death produces in a man's mind the same
feeling as that of a conscientious and virtuous man under oath-nemo moriturus
praesumuntur mentiri.4
1. Written form;
2. Verbal form;
4.Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co.,
Nagpur, 1999, p. 633.
3. Gestures and Signs form. In the case ''Queen vs Abdulla 5'', it was held that if
the injured person is unable to speak, he can make dying declaration by
signs and gestures in response to the question.
OBJECTS;
1. The presumption is '' a person who is about to die would not lie''.
2. It is also said that '' Truth sits on the lips of a person who is about to die''.
3. The victim is exclusive eye witness and hence such evidence should not be
excluded.
1. The declarant was in a fit condition of mind to give the statement when
recording was started and remained in fit condition of mind until the
recording of dying declaration is completed.
2. The fact of fit condition of mind of declarant can be best certified by the
doctor.
3. Yet, in case of where it was not possible to take fitness from the doctor,
dying declaration has retained its full sanctity if there are other witnesses to
testify that declarant was in fit condition of the mind which did not prevent
him from making dying declaration.
4. However, it should not be under the influence of anybody or prepared by
prompting, tutoring or imagination. If any dying declaration becomes
suspicious, it will need corroboration.
5. If a declarant made more than one dying declarations and if these are not at
variance with each other in essence they retain their full value. If these
declarations are inconsistency or contradictory, such dying declarations lose
their value.
state in mind.
7. In some cases, F.I.R was also
question.
8. Inconsistent dying
11(52Cr.L.J883)
12 AIR1981SC1578.
13 CriLJ19881313
Black's Law Dictionary defines hearsay as "A statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Hearsay evidence is testimony in Court of a
statement made out of the Court, the statement being offered as an assertion to
show the truth of matters asserted therein, and thus resting for its value upon the
credibility of the out of Court asserter."14
The hearsay rule generally disallows the use of out of Court statements as
evidence of the truth of the matters asserted in that statement. Because the
person who is giving this evidence is not telling his experience but that of
another person. Dying declaration is one of the exceptions to the rule against
hearsay. The main guiding reason for making dying declaration an exception
to the hearsay rule arises out of necessity. If this evidence not considered
very purpose of justice will be forfeited in certain situation when there may
not be any other witness to the crime except the person who has since
died.15. Since, there might arise situations where someone would have been
shot at or inflicted with fatal injuries while no one was around. In such
situations to let the accused go free just because there was no witness to the
crime would result into miscarriage of justice. Hence, to avoid situations like
above dying declaration has been made an exception to the rule against
hearsay.
of living (Settled hope less expectation of death).16 Whereas a dying ' declaration in
India is relevant whether the person who made it was or was not, at the time it was
made under the expectation of death. Thus, in India it is immaterial whether there
existed any expectation of death at the time of the declaration. In R v. Jenkins17 the
deceased made a statement implicating the accused. Her dying declaration included
the words that it was made 'with no hope of my recovery'. While it was being read
to her she sought to amend the same and asked to add 'present' before hope. Thus,
her dying declaration contained the words that it was made 'with no present hope
of my recovery'. The Court held, that the statement could not be received in
evidence since, at the time of making it the deceased I was not under settled
hopeless expectation of death and her dying declaration suggested that at the time
of making it she entertained a faint hope of recovery.
Had the same situation arisen in India, it would have been admitted in
evidence since in India any statement made by a person (since deceased) as to the
cause of death circumstances of the transaction resulting in death of that person is
admitted in evidence. Thus, her statement implicating the accused would have
sufficed to make it admissible under Section 32(1) of the Act. The problem with
English position is that of ascertaining the existence of knowledge of approaching
death. Since, this ascertainment is to be done by the Judges depending upon the
circumstances of each case; it always leaves the possibility of subjectivity creeping
in.18
Scope of Application
charge of rape. But, in England such dying declaration is not admissible to prove
rape.20 Since, in such cases, the death of the deceased is not the subject-matter of
the charge.
In India a dying declaration is admissible even in civil suits also. Section
32(1) of the Act clearly provides that such statements (i.e. statements as to cause of
death or as to any ............. his death) are relevant whatever may be the nature of
the proceedings in which the cause of his death comes into question. Thus, in India
admissibility of a dying declaration does not depend upon the nature of the
proceedings. But in England a dying declaration is admitted in evidence only for
the criminal cases and that too it is restricted only to those cases where the death is
the subject-matter of the charge.21
Evidentiary Value
22.(1954) 21 EACA 331, c.f., Nambhard v.The Queen, (1982) 1 All ER 183 PC.
the weight to be attached to a dying declaration recorded under S. 32(1) of the Act
would be less than the weight to be attached to a dying declaration under common
law rules. The reasoning behind such observation was that the dying declaration
under S. 32(1) would lack that special quality that is thought to surround a
declaration made by a dying man who was conscious of his condition and who had
given up all hopes of survival.
23.M. Monir, Law of Evidence 7th ed. Universal Law Publishing Co. Allahabad, 2006, p.123.
24.S. 118 of the Indian Evidence Act reads that "All persons shall be competent to testify
unless the Court considers that they are prevented from understanding the questions put to
them, or from giving rational answers to those questions, by tender years, extreme old age,
disease whether of body or mind, or any other cause of the same kind."
Thus, there are significant differences between Indian and English law in the
area of dying declaration. English law is not only rigid but also narrower in its
scope. The Law Commission Of England in its 245th report on "Evidence in
Criminal Proceedings : Hearsay and Related Topics" has aptly commented that,26
"Apart from the dubious psychological foundation for the exception, and the
difficulty of proving that the deceased had a settled hopeless expectation of death,
the principal illogicality of this exception is its restriction to murder and
manslaughter. It does not apply to rape or armed robbery, but there is no logical
justification for such a restriction. It is also out of step with the modern approach to
res gestae, in which the emphasis is rightly on probative value."
26.http ://www.lawcom.gov.uk/74.htm.
28.M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995) 7 NLSJ, p. 88.
29.R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div)), c.f.
www.westlawinternational.com
30.Supra, note 2.
The main problem with dying declaration is not so much one of sincerity or
faulty memory, but one of perception. Motive of hatered and revenge may lead a
declarant to make false statements, even with the approach of death. The declarant
may exhibit strong feeling of hatred and revenge and if he is in such a frame of
mind, the supposed guarantee of trustworthiness fails, and the' declaration should
not be admitted.31
31.Supra, note 2.
There doesn't seem to be much controversy as far as, the question of a dying
declaration being a significant piece of evidence is concerned. The divergent and
conflicting Judicial opinion has been with respect to value and importance to be
attached to dying declaration in basing the conviction of an accused: The Courts in
India have held time and again, that a dying declaration before it could be relied
upon must pass a test of reliability, as it is a statement made in the absence of the
accused and there is no cross-examination of the declarant to test its genuinety or
veracity. Thus, a dying declaration must be subject to close scrutiny.32A dying
declaration in India stands on a different footing than in England. Under the
English law, credence and the relevancy of a dying declaration is important only
when person making such statement is in hopeless condition and expecting an
imminent death.33 In India, the weight to be attached to a dying declaration
depends not upon the expectation of death that is presumed to guarantee the truth
of the statement, but upon the circumstances and surrounding under which it was
made, and very much also upon the nature of record that has been made of it.34
33.I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra, note 18, p. 413.
dying declaration.35Since then, the Supreme Court in a catena of cases has held that
conviction can be based on an uncorroborated dying declaration provided that the
Court has come to the conclusion that it is true and voluntary. The most significant
being the case of Khushal Rao v. State of Bombay36 where, the Supreme Court laid
down several propositions with respect to dying declarations and these
propositions till date continue to govern the law relating to dying declarations. The
Court held, that there is no absolute rule of law that a dying declaration cannot
form the sole basis of conviction unless it is corroborated, nor can it be said that a
dying declaration is a weak piece of evidence. The Court further held 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 principle
governing the weighing of evidence. Speaking on the same line the Supreme Court
34.Supra note 22
35.Ram NathMadho Prasad v. State of M.P., AIR 1953 SC 420. (Even in this case the above
observation of the Court came in light of the fact that the deceased was shot at during a
cloudy, dark night thereby making it highly impossible for him to recognize the person.
Since, there was a possibility of the dying declaration not containing the truthful account of
what happened, the Court insisted on the corroboration of the dying declaration.)
held in the case of Padmaben Shamalbhai Patel v. State of Gujarat37 that, "a
dying declaration is an independent piece of evidence-neither extra strong nor
weak and can be acted upon without corroboration if it is found to be otherwise
true and reliable."
38.The Supreme Court in Paniben v. State of Gujarat, has summed up the principles
goverining dying declarations. Some of the important principles are as follow.
(1) It is neither a rule of law nor prudence that a dying declaration cannot be acted
upon without corroboration. If the Court is satisfied that the dying declaration is true
and voluntary it can base a conviction on it, without corroboration.
(2) The Court has to scrutinize the dying declaration carefully and ensure that the
declaration is not the result of tutoring, prompting or imagination and the deceased
had opportunity to observe and identify the assailants and was in a fit state to make
the declaration.
(3) Where a dying declaration is suspicious it should not be acted upon with out
corroborative evidence.
|4) Normally the Court in order to satisfy whether the deceased was in a fit state of
mind while making dying declaration look up to the medical opinion. But, where the
eyewitness has said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail.
only when the death of the declarant comes into question. Such a construction
poses problems in many situations. For e. g. B and his wife were shot at. Both of
them died. Mrs. B. when dying described the assailant. Her declaration was
excluded, because it was not her death but the death of her husband that was the
subject matter of the charge. Wigmore calls this exclusion the senseless rule of
exclusion.39 In situation such as above the declaration with respect to other person's
death also need to be admitted in order to prevent the miscarriage of justice. The
law commission of India, in its sixty-ninth report on the Indian Evidence Act, 1872
observed that the language of the Section is even now capable 1 a wider
construction". Accordingly it recommended that, an explanation II might be added
to Sec. 32 (1) on the following lines;
"The circumstances of the transaction which resulted in the death may
include facts relating to the death of another pel son."40
39
Supra, note 2.
40
41
investigation might tamper with the dying declaration to tilt the balance in their
favour. The Supreme Court in the case of Dalip Singh v. State of Punjab42has held
that it is better to leave dying declarations made to police officers- during in-
stigation out of consideration until and unless prosecution satisfies the Court as to
why it was not recorded by a magistrate or doctor. It further held that such declara-
tions might be relied upon if there was no time or facility for adopting the better
method. Several High Courts have also held that it is not prudent to base
conviction on a dying declaration made to an investigating officer and the practice
of the investigating officer recording dying declaration should not be encouraged.43
It all depends on the facts and circumstances of the case. Thus, where the
dying declaration recorded by the police officer was natural, coherent, truthful,
narrating incident without embellishment and explicitly identifying accused, such
dying declaration was held to be valid.44 But, where the investigating officer had
42
43
.AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan,
1993 Cr. L. J. 2696 (Raj)
44
.I. L, R. (1979) 1 Del. 752, c.f; Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence,
vol. 1 Madras Law journal, Madras, 1998, p. 516.
recorded the dying declaration even before the victim was certified by the doctor to
be fit for making a statement and though the victim survived for two weeks
thereafter, the investigating officer made no efforts to get this statements recorded
by a magistrate, it was held, that no reliance could be placed on such dying
declaration.45
In Rambai v. State of Chhattisgarh,46It was held that if the person recording the
dying declaration is satisfied that the declarant is in a fit medical condition to make
a dying declaration then such dying declaration will not be invalid solely on the
ground that the doctor has not certified as to the condition of the declarant to make
the dying declaration.
Similarly, there is no hard and fast rule that a doctor's certificate as to the mental
fitness of the deceased is prerequisite for the admissibility of a dying declaration in
evidence. A constitutional bench of the Supreme Court in the case of Laxman v.
State of Maharashtra47 while rejecting the contention of the appellant, that since
the certification of the doctor was not to the effect that the patient was in a fit state
of mind to make the statement, the dying declaration could not form the sole basis
45
46
(2002) 8 SCC 33
In Smt. Paniben v. State of Gujarat,49the Supreme Court has laid down in several
principles governing dying declaration, which could be summed up as under:
47
48
(i) There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration.
(iii) 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 a fit
state to make the declaration.
(v) Where the deceased was unconscious and could never make any dying
(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction.
(vii) Merely because a dying declaration does contain the details as to the
49
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental
condition to make the 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.
(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration,
one first in point of time must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable, it has to be accepted.
1. It is for the court to see that dying declaration inspires full confidence as the
maker of the dying declaration is not available for cross examination
3. Certificate of the doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the
declarant was not acceptable especially if the doctor was available.
50
5. Dying declaration may be in the form of questions and answers and answers
being written in the words of the person making the declaration. But court cannot
be too technical.
In this case honble supreme court has laid down following guidelines:-
2. The test of proximity cannot be too literally construed and practically reduced to
a cut-and-dried formula of universal application so as to be confined in a strait-
jacket. Distance of time would depend or vary with the circumstances of each case.
For instance, where death is a logical culmination of a continuous drama long in
process and is, as it were a finale of the story, the statement regarding each step
directly connected with the end of the drama would be admissible because the
entire statement would have to be read as an organic whole and not torn from the
context. Sometimes statements relevant to or furnishing an immediate motive may
also be admissible as being a part of the transaction of death. It is manifest that all
these statements come to light only after the death of the deceased who speaks
from death. For instance, where the death takes place within a very short time of
the marriage or the distance of time is not spread over more than 3-4 months the
statement may be admissible under section 32.
3. The second part of clause (1) of section 32 is yet another exception to the rule
that in criminal law the evidence of a person who was not being subjected to or
given an opportunity of being cross-examined by the accused, would be valueless
because the place of cross-examination is taken by the solemnity and sanctity of
oath for the simple reason that a person on the verge of death is not likely to make
a false statement unless there is strong evidence to show that the statement was
secured either by prompting or tutoring.
4. It may be important to note that section 32 does not speak of homicide alone but
includes suicide also, hence all the circumstances which may be relevant to prove a
case of homicide would be equally relevant to prove a case of suicide.
5. Where the main evidence consists of statements and letters written by the
deceased which are directly connected with or related to her death and which
reveal a tell-tale story, the said statement would clearly fall within the four corners
of section 32 and, therefore, admissible. The distance of time alone in such cases
would not make the statement irrelevant.
CONCLUSION :-
BIBLIOGRAPHY