DYING DECLARATION

A dying declaration is a declaration is a declaration oI statement written or verbal made

by a person as to the cause oI his / her death, or as to any oI the circumstances oI that transaction
which resulted in his / her death.
It is a statement, which must have been made by the deceased beIore his death.
Dying declaration are statements made by a dying person as to the injuries which
culminated in his death or the circumstances under which the injuries were inIlicted.
For example: II A has been assaulted by B or has been attacked by B, and dies. A shortly
beIore his death makes a declaration holding B responsible Ior the injuries inIlicted on him with
spear. The statement oI A is admissible as it relates o the cause oI his death as a dying
declaration at the trial against B.
Statements made by a deceased long period beIore the occurrence resulting in his death
are not dying declarations and not admissible under Article 46.
Article 46 makes admissible, the statement oI a person who dies, whether the death is
homicide or a suicide, provided the statement relates to the cause oI death or deals with
circumstances leading to death.
Law relating to dying declaration.
Article 46. Cases in which statement of relevant fact by person who is dead or cannot be
found, etc, is relevant. Statements, written or verbal, oI relevant Iacts made by a person who is
dead, or who cannot be Iound, or who has become incapable oI giving evidence, or whose
attendance cannot be procured without an amount oI delay or expense which under the
circumstances oI the case appears to the Court unreasonable, are themselves relevant Iacts in the
Iollowing cases:
1- Statements or declaration by persons since deceased, viz. declaration relating to his case
oI death.
2- Declaration made in course oI business or duty.
3- Declaration against interest.
4- Declaration as to public rights.
5- Declaration as to pedigree.
6- Declaration by testators in their wills, and
7- Declaration by several person expressing Ieelings.

Article 46(1) states 'When it relates to cause oI death:- When the statement is made by a
person as to the cause oI his death, or as to any oI the circumstances oI the transaction which
resulted in his death, in cases in which the cause oI death oI that person 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 expectation oI death and whatever may be the nature oI the
proceeding in which the cause oI his death comes into question.
Illustration (a) The question is, whether A was murdered by B; or A dies oI injuries
received in a transaction in the court oI which she was ravished. The question is, whether she
was ravished by B, or
The question is, whether A was killed by B under circumstances that a suit would lie
against B by A`s widow.
Statements made by A as to the cause oI his or her death, reIerring respectively to the
murder, the rape and the actionable wrong under consideration are relevant Iacts.

DYING DECLARTION IS AN EXCEPTION TO HEARSAY RULE:
earsay means a statement made otherwise than by a person while giving oral evidence
in the proceedings which is tendered as evidence oI the matters stated.
earsay may be Iirst hand, when a witness says he heard someone else say, or second
hand (or even more distant) when he relates to what he was told that someone else said.
earsay evidence may be oral or documentary, oI Iact or oI opinion. Oral or written
statement made by person who are not parties and who are not called as witnesses are
inadmissible to prove the truth oI the matters stated.
The eIIect oI general rule oI hearsay evidence is to prohibit certain oral and written
statements oI person other that that witness who is giving evidence being related to the Court as
evidence oI truth oI that which was asserted in the statement and notwithstanding the Iact that no
better evidenced oI the Iacts stated is to be obtained.
The provision oI article 46, inter alia providing admissibility of dying declaration in
evidence, is exception to the hearsay rule. The exception to the hearsay evidence has been
directed by necessity. The general ground oI admissibility oI the evidenced reIerred to in
Article 46 is that no better evidence could be produced. BeIore such evidence is admitted, the
Court must arrive at a Iinding on evidence Iormally and regularly taken and recorded that one or
other oI the grounds speciIied in the Article 46 exists. The admission oI such deposition in
evidence without such Iinding is illegal.
Article 46 makes relevant the statements given by a deceased person as to the cause oI his
death or as to any circumstances oI the transaction which resulted in his death, when the cause oI
death comes into question.
1- It is a Cardinal Rule in Law oI Evidence that the direct evidence is the best evidence
having great probative Iorce, as it is original, positive and based on 1
st
hand knowledge.
2- The word direct evidence is opposed to mediate or alternate or what is technically called
hearsay or second hand evidence.
3- Principle oI necessity has successIully been able to carve its way to get one oI the most
important Articles making way to the use oI hearsay evidence.
4- Article 46 is one oI the most important Articles making way to the use oI hearsay
evidence.
5- Article 46 provides cases in which statement oI relevant Iact by person who is dead or
cannot be Iound is relevant.

To sum up dying declaration is the combination of the following ingredients:-
a. It relates to the case oI death;
b. It includes the circumstances with resulted into death;
c. It is relevant when the cause oI declarant`s death come into question whatever may be the
nature oI proceedings irrespective oI the Iact whether such statement was made under the
expectation oI death or otherwise.

Principles of dying declaration:
a. There is no speciIied Iorum beIore whom such declaration is required to be made.
b. There is no bar that it cannot be made beIore a private person.
c. Dying declaration can be oral. Non recording oI the same does not give Iatal blow to the
prosecution case.
d. There is no legal requirement that the declaration must be read over or it must be signed
by its maker.
e. It is not a legal requirement that dying declaration should have been made under
immediate apprehension oI death.
I. Dying declaration should be inIluence Iree. (No be prompted by relatives, Iriends, etc.)
g. In order to prove such declaration the person by whom it was recorded should be
examined.
h. Such declaration becomes substantive evidence when it is proved that it was made by the
deceased.
i. Corroboration oI a dying declaration is not a rule oI law, but requirement oI prudence.
j. Such declaration when proved by cogent evidence can be made a base Ior conviction.

ESSENTIALS OR CONDITIONS FOR RELEVANCY AND ADMISSIBILITY OF
DYING DELARATION:
1- The declarant must have died: For a statement to be admissible as a dying declaration, the
declarant must die aIter making the statement. II the declarant survives and does not die,
the statement cannot be used as a dying declaration.

2- The dying declaration must be a statement written or verbal: The dying declaration may
be written or verbal which includes oral, signs and gestures. Signs and gestures such as
nod or a shake oI head oI a dying person, unable to speak, in answer to question put to
him can be used as dying declaration.

3- Injuries are the cause oI his death: BeIore the statement oI a person as to cause oI his
death may be used as dying declaration it must be proved that his death was caused by
the injury he received in the incident Ior which accused is being prosecuted. II a person
dies not on account oI injuries which are inIlicted on him but on account oI some other
reasons or ailment the dying declaration would not be admissible.

4- Circumstances oI the transaction which resulted in his death: The words resulted in his
death` do not mean cause oI his death. The expression any oI the circumstances oI the
transaction which resulted in his death are wide enough to include the motive oI the
alleged crime.

The Statement may be made beIore the cause oI death has arisen, or beIore the
deceased has any reason to anticipate being killed.
The circumstances must be the circumstances oI the transaction; general
expressions indicating Iear or suspicion, whether oI a particular individual or otherwise
and not directly related to the occasion oI the death, will not be admissible.
The circumstances must have some proximate relation to the actual occurrence.
Any statement made by the deceased long beIore the incident murder will not be
admissible.
Some times letters written even 5 years prior to the event are admissible in
evidence under article 46.

5- The Cause oI the death oI the declarant must be in question: A dying declaration would
be relevant in any proceedings, Civil or Criminal, where the cause oI death comes into
question. Where ever the cause oI person`s death is a point at issue, the statement will be
admissible. The statement as to cause oI death or as to any circumstances oI the
transaction which resulted in his death is relevant. The nature oI the proceeding in which
the cause oI death comes into question need not necessarily be a charge oI murder or
homicide. It may be a charge oI a diIIerent nature or it may be a civil action.

6- The declaration must be complete: A dying declaration must be complete, Irom the point
oI view oI the declarant. II he has said all that he wanted to say it would be relevant. But
it happens that aIter making same statements he is about to add something more when he
becomes unconscious and dies, the statement would be an incomplete dying declaration
and thereIore, will not be relevant. The reason Ior incomplete dying declaration not being
admissible is that no one can tell what the deceased was about to add.

7- Declaration to be taken as a whole: Though there is a controversy on this point, in some
case it has been held that it must be taken as a whole. II a statement is admissible, it must
either go in a whole or not at all.
Parts oI the statements made here and there can not be divested Irom their context
Ior the purpose oI supporting the prosecution case.
II a portion oI a dying declaration is untrue, the rest oI it cannot be necessarily
rejected and iI part oI it is shown to be Ialse, the court may declare to believe the rest
without corroboration.

8- Declaration should be precise: The dying declaration should be short, concise and to the
point. Detailed statement covering the minutest details could not be expected Irom the
declarant who is under severe stress and agony. The mere Iact that the dying declaration
did not contain the detailed version oI the occurrence was no ground to disbelieve it.

9- The declarant must be competent: The person who is making a dying declaration must be
competent. Even a dying declaration made by an inIant is admissible but the competency
oI the minor has to be determined in terms oI Article 3 oI the Qanun-e-Shahadat Order,
1984.

10-The declarant must be in a Iit condition: BeIore dying declaration is sought to be proved
under article 46, it must be shown that the declarant was in a Iit state oI mind to make the
dying declaration, that the declarant was conscious oI the surroundings and oI the person
who attacked him.
REASONS FOR ADMISSIBILITY AND VALIDITY OF DYING DECLARATION:
The admissibility oI dying declaration is based on the maxim 'Nemo Mortiturus Praesumutur
mentire which means A man will not meet the Maker with a lie in his mouth. The
presumption is that when a person is conscious oI his impending death, when he is conIident oI
his Iast dissolution or when he has resigned Irom the hope oI survival, then in such cases he
would not lie because A man will not meet his Maker with a lie in his mouth`.
owever, experience shows that very oIten the dying man takes that last opportunity to
implicate all his enemies and thus wreak a sweet vengeance on them. ence, the dying
declaration should be admitted with utmost care when accepting as evidence.
RULES FOR ADMISSIBLITY OF DYING DECLARATION:
In Khushal Rao vs State of Bombay AIR 1958 SC 22 ], where the appellant was convicted
Ior the oIIence oI murder on the basis oI the dying declaration oI the victim, the supreme court
while dismissing the appeal laid down the Iollowing rules:
(i) It cannot be laid down as an absolute rule oI law that a dying declaration cannot
Iorm the sole basis oI conviction unless it is corroborated.
(ii) Each case must be determined on its own Iacts keeping in view the circumstances
in which the dying declaration was made.
(iii) It cannot be laid down as a general proposition that a dying declaration is a weak
kind oI evidence than other pieces oI evidence.
(iv) A dying declaration stands on the same Iooting as any other piece oI evidence and
has to be judged in the light oI surrounding circumstances and with reIerence to
the principles governing weighing oI evidence.
(v) A Dying declaration which has been recorded by a competent magistrate in a
proper manner i.e. in the Iorm oI questions and answers and in the words oI the
maker as Iar as practicable stands on a much higher Iooting than a dying
declaration which depends on oral testimony which may suIIer Irom all the
inIirmities oI human memory and character.
(vi) In order to test the reliability oI a dying declaration the court has to keep in view
the circumstances like the opportunity oI the dying man Ior observation, Ior
example, whether there was suIIicient light iI the crime was committed at night;
whether the capacity oI the man to remember the Iacts stated has not been
impaired at the time he was making the statement by circumstances beyond his
control; that the statement had been consistent throughout iI he had several
opportunities oI making a dying declaration apart Irom the oIIicial record oI it;
and that the statement had been made at the earliest opportunity and was not a
result oI tutoring by interested parties.
(vii) A dying declaration cannot be made to equate with the evidence oI an accomplice
or the evidence Iurnished by a conIession as against the maker, iI it is retracted
and as against the others even though not retracted.
(viii) II the court is satisIied that the dying declaration was the truthIul version as to the
circumstances oI the death and assailants oI the victim, iI can depend on solely on
the dying declaration and the conviction can be laid saIely.

THE TEST FOR THE ACCEPTANCE OF DYING DECLARTION BY COURTS:
(ADMISSIBILITY AND VALIDITY):

In a number oI cases it has been held that iI the statement oI the dying person passes the
test oI careIul applied by the court, it becomes more reliable evidence and does not require
corroboration.
The two things main things which a court must take care oI Ior examining a dying
declaration are that (1) It is not the result oI coaching, tutoring or prompting oI some body. (2)
and that the deceased was in a Iit state oI mind to make the statement and made the statement
without any enmity. owever, the general questions to be considered are as under:
i. Whether the maker had the physical capacity to make the dying statement.
ii. Whether the maker had opportunity to recognize the assailants.
iii. Whether there were chances oI mistake on the part oI the dying man in identiIying
and naming his assailants.
iv. Whether it was Iree Irom prompting Irom any outside quarter and was not
inconsistent with the other evidence.
v. Whether the witness who heard the deceased making the statements heard him
correctly and whether their evidence can be relied on.
vi. Whether enmity exists between the parties among themselves or prosecution witness
and accused person.

In Sunil Kashinath Raimale Vs State oI Maharashtra | 2006 CrLJ 589 (Bom) |, it has
been held that in a bride burning case, where Iather oI the deceased-wiIe accompanies her to the
hospital and was present at the time oI recording oI the dying declaration, the possibility oI
tutoring could not be ruled out especially when the statement oI the Iather showed that he had
some grudge against the accused husband oI the deceased.
In order to pass the test oI reliability, a dying declaration has to be subjected to a very
close scrutiny, keeping in view oI the Iact that the statement has been made in the absence oI the
accused who had no opportunity oI testing the veracity oI the statement by cross examination.
But once the court has come to the conclusion that the dying declaration was the truthIul
version as to the circumstances oI the death and the assailants oI the victim, there is not question
oI Iurther corroboration and the dying declaration can Iorm the basis oI conviction.
In order to test the reliability oI the dying declaration the court has to keep in view the
circumstances like the opportunity oI the dying man Ior observation, whether the capacity oI the
man to remember the Iacts 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 iI he had several opportunities oI making a dying declaration, a part Irom the oIIicial
record oI it; and that the statement had been made at the earliest opportunity and was not the
result oI tutoring by interested parties.
To be reliable the dying declaration should be truthIul as they were voluntarily made by
the deceased while he was in a Iit state oI mind.
HO ARE ENTITLED TO RECORD THE DYING DECLARTION?
A Dying declaration may be made to anyone i.e. to a Police OIIicer, to a doctor or to any
person but iI it is made to a Magistrate and is recorded by him, then it will have greater
evidentiary value.
(1)Recording by Magistrate: Though it is not essential that a dying declaration should be
recorded by a Magistrate, yet ordinarily, whenever an injured person is in precarious
condition, the investigating oIIicer should requisition the services oI a Magistrate Ior
recording the Dying Declaration. The Magistrate being a disinterested witness and a
responsible oIIicer and there being no material oI circumstance to suspect that he had any
,32:8 against the accused or was any how interested Ior Iabricating a dying declaration,
the question oI doubt on the dying declaration recorded by the Magistrate would not
arise.

(2)Recording by Investigating Officer (Police Officer): Although a police oIIicer is
competent to record dying declaration but the courts have deprecated such practice.
The Investigating oIIicer is a person naturally interested in the success oI his
investigation, thereIore, he may record the statement oI victim, who is in a precarious
condition, without requisitioning the services oI the Magistrate.
ThereIore, where an investigating oIIicer had plenty oI time and Iacility to procure the
services oI a Magistrate Ior recording a dying declaration, the dying declaration recorded
by the investigating oIIicer should be excluded Irom consideration iI he did not
requisition the services oI Magistrate.
Where however, the police oIIicer tries to procure the services oI a Magistrate but the
Magistrate was not available, then the statement recorded by him in such circumstances is
admissible under Article 46(1).
Where an investigating oIIicer has recorded the statement oI an injured in the ospital as
FIR, the FIR so recorded can serve as dying declaration aIter the person succumbing
owing to injuries.

(3)Recording by duty doctor: Where the dying declaration was made by the deceased to
the Doctor in the ospital, in absence oI any material to suspect that the doctor had any
,32:8 against the accused the statement oI the doctor who was a responsible oIIicer and
an uninterested witness, could not be discarded. Such a dying declaration is a reliable
one.
Where the deceased narrated to the duty doctor at the time oI her admission in the
hospital as to how she received burn injuries and the doctor recorded it, it was held to be
admissible as dying declaration.
Where the doctor recorded the dying declaration oI the deceased aIter waiting Iro the
police Ior long as the condition oI the victim was deteriorating Iast and later on the police
recorded the dying declaration continuing Iurther details which could not be said to be
improvement, conviction as the basis oI such dying declaration is proper.
Where no relation oI the deceased was present and hence there was no question oI
tutoring, her condition being serious, recording oI her dying declaration by the duty
doctor was held to be proper and in the circumstances oI the case even Iitness certiIicate
oI the hospital incharge was not necessary.
Where the dying declaration recorded by the doctor suIIers Irom inIirmities and was
uncorroborated, it could not Iorm the basis oI conviction.
Where the judicial magistrate was shown to be unavailable, the dying declaration
recorded by the doctor in the absence oI any extraneous pressure can be relied upon Ior
sustaining the conviction.

(4)Recording by any other person: Where the dying declaration is recorded by a person
who is not a Magistrate, Doctor or Investigating OIIicer, the same is still admissible in
evidence.
Some times the circumstances are such that beIore the injured is taken to the hospital or
to the police station he expires, so it is not possible that a Magistrate, Doctor or Police
OIIicer to record the Dying Declaration. In this case the statement may be recorded by
any other person.
Where the injured died on the way while he was being taken to hospital in the bullock
cart by the prosecution witnesses. On the way he disclosed to the said witnesses that he
has been assaulted by the accused persons to the eIIect which they deposed beIore the
court which was supported by medical evidence and the surrounding circumstances
convincingly. The dying declaration made to the witnesses was accepted.
PROCEDURE FOR RECORDING DYING DECLARTION:
(1) CertiIication by the Medical OIIicer as to the mental and Physical Fitness oI the
Declarant: Attempt should not be made to get the statement recorded by Magistrate
unless the doctor had made a certiIicate that the deceased was in a Iit state to give
statement. This certiIicate may by on the dying declaration itselI or it may be on a
separate Iorm but it must be IulIilled in spirit and substance.
The note by the doctor shall make it clear that apart Irom the condition oI the patient, the
doctor shall certiIy the time when the dying declaration was recorded, the Iact that the
doctor has certiIied the condition oI the patient, both prior to the dying declaration being
recorded and aIter it has been completed.

(2) Should be conscious and voluntary: The person recording the dying declaration must be
satisIied that the dying man was making a conscious and voluntary statement with
normal understanding and responsibility oI the court is greater in holding that it was so
made especially when it is Iound that the man will die a Iew minutes aIter recording the
dying declaration.

(3) Should be precise and complete: A dying declaration should be short, concise and to the
point. It is not the requirement oI law that the person making the dying declaration should
make an elaborate and exhaustive statement so as to cover each and every aspect oI the
incident and narrate the whole history oI the case.
It must be complete as incomplete dying declaration is not admissible.

(4) Must be made soon aIter the alleged incident: II a dying declaration is made by a person
soon aIter the incident oI attack on him then it can have greater evidentiary value.
In dowry death cases, the dying declaration must be recorded as quickly as possible aIter
the victim reaches the hospital without any time being lost as the condition rapidly
deteriorates with the set oI time and the doctor must certiIy that the victim was personally
asked about the incident and that too independently oI all those accompanying her and
that the correct answers given must Iind place in medico legal register.
II there is an interval or there is a time gap then there is every possibility oI that dying
declaration being tempered on account oI the impression gathered Irom other persons.
II there is an interval it provides opportunity to the person to think over and bring all his
enemies to the scene implicating them to take a sweet revenge.

(5) Must have been recorded in the exact words in which it is made: As Iar as possible the
dying declaration must have been recorded in the exact words in which it was spoken by
the declarant. Where the dying declaration is recorded in the language oI the declarant it
requires added strength and reliability. Any suggestion that the deceased had said
something by mistake cannot be entertained.

(6) Signature oI Thumb Impression oI the declarant be taken: II the declarant is in such a
condition that he is in a position to sign and thumb mark the dying declaration then the
statement should generally bear the signature and thumb impression, otherwise it may not
be admissible in evidence.

(7) Should be in question and Answer Iorm: Dying declaration should be preIerable in
question and answer Iorm but the same is not laid down as universal rule. Generally
dying declaration ought to be recorded in question and answer Iorm but iI it is not
elaborate and consists only oI a Iew sentences and is in the actual words oI the maker, the
mere Iact that it is not in question and answer Iorm cannot be a ground against its
acceptability or reliability.

(8) Must be signed by the scribe oI the dying declaration: Where there was no certiIication oI
the scribe oI the dying declaration that what ever he had scribed was the correct
statement oI the deceased, such a dying declaration could not be relied upon to sustain
conviction.

FORM OF RECORDING DYING DECLARATION:
There is no particular Iorm to be employed in the making a dying declaration.
The Article 46 provides that it may be written or verbal. ThereIore, it may be oral or in
writing or may even be partly oral and partly in wring. On the other hand it may be neither oral
nor written i.e., it may consist oI some signs or gestures made by the deceased.
The declaration should be in the exact words oI the person making it. It is better iI it is
recorded in the language oI maker.
It should be in the question and answer Iorm.
A dying declaration may be made expressly by means oI letters or by means oI words
spoken. A conviction can no doubt be based on an oral dying declaration, but is has to be
trustworthy and Iree Irom every blemish capable oI inspiring conIidence.
In Queen Vs. Abdullah (1885) 71 LR All 385 ] it has been held that a dying
declaration can also be made through signs and gestures and these signs and gestures are
regarded as verbal statements within the meaning oI section 32 (Now article 46).
The appellant Abdullah was charged beIore the court oI Sessions with a murder oI one
Dulari, a prostitute by cutting her throat with a razor. Although she was conscious she was not in
a position to speak as her wind-pipe and the anterior wall oI the gullet had been cut through and
also had a cut on her thumb.
When she was conscious and able to make signs though she was unable to speak. The
Magistrate mentioned several names and asked regarding them one by one iI they had wounded
her. She waived her hand backward and Iorward and thus making a negative sign. Then she was
questioned that whether Abdullah had wounded her. On this she moved her hand up and down.
This was understood to be a sign oI aIIirmative by the Magistrate recording the statement.
Again a question was put to her iI she had been wounded with sword or KniIe. She made
a negative sign with her hand. When the question was put iI she had been wounded with a razor,
she made an aIIirmative sign with her hand.
She made a negative sign Ior the question whether she was awake when her throat was
cut. She made an aIIirmative sign when she was asked whether she was asleep at that time.
She made a negative sign when asked whether she had been wounded in the night and she
made an aIIirmative sign Ior the question whether she was wounded in the morning.
She made an aIIirmative sign Ior the question whether she had recognized Abdullah.
Evidence was oIIered by the prosecution to prove the questions put to her and the signs
she made in answer. Objection was taken on behalI oI the accused that under section 32 (now
Article 46) only written or verbal (or oral) statements made by a deceased as to the cause oI her
death were admissible in evidence and that the signs were not verbal within the meaning oI
section 32 oI the Evidence Act. Overruling the objection, it was held that the questions and the
signs taken together might be regarded as verbal statements made by a person as a cause oI the
death within the meaning oI section 32 oI the Evidence Act, and thereIore, admissible in
evidence as the signs and gestures oI the deceased is deemed to have adopted the words
employed by others.
In ALEXANDER VS THE KING AIR 1937 PC 24 ], where the victim whose throat
was cut by the accused was alive Ior some time and being questioned regarding the accused she
answered the questions by signs and nods not being able to speak. The deceased described the
accused by signs and when she was asked whether that person was the accused, she showed her
assent by nod. It has been held that the sign made by the deceased constitute a verbal statement
resembling the case oI a dumb person and was relevant and admissible in evidence.
PROOF OF DYING DECLARATION:
When the dying declaration is verbal it can be proved by examining the person in whose
presence the statement was made. But where the dying declaration is recorded the person
recording the statement is to be examined beIore the court, and he will prove the writing beIore
the court.
The Dying declaration may be proved by the evidence oI a witness who heard it being
made.
Where the declarant mentions the name oI the accused in the presence oI the doctor who
gave him preliminary treatment and the doctor`s evidence is Iound to be very clear and unshaken
in any manner in the cross examination, the dying declaration is reliable.
Generally, the dying declaration cannot be treated as a deposition unless made in the
presence oI the accused and beIore the Magistrate. owever, where the deIence admits the
document, no Iormal prooI is necessary and it can be read in evidence Ior all purposes though it
author is not examined beIore the court.
The written record oI a dying declaration, not taken down in the presence oI the accused,
is admissible, when it is proved by a witness that the statements contained therein were, in his
presence recorded by a Magistrate, and read over the deceased who admitted their correctness.
In POTHAKAMURI SRI NIVASULU VS STATE OF AP AIR 2002 SC 2780 ]
where an old woman was attacked and robbed oI her ornaments by the watchman oI a garden
and another watchman and a shepherd noticed the assailant leaving the garden. On questing the
victim narrated the incident and named the assailant to them and to her sister who reached there
being inIormed oI the incident she was taken to hospital where the doctor Iound her unconscious
and aIter two days she died. The three deposed in the court as witness as to what the deceased
had told them. The dying declaration deposed to by these independent and natural witnesses was
accepted. The court held that it could not be rejected on the ground oI the assumption that the
deceased had become unconscious and speechless aIter the injuries.
HEN DYING DECLARATION CANNOT BE TAKEN INTO CONSIDERATION:
1. Incomplete: A dying declaration is inadmissible in evidence iI it is incomplete. II while
making the declaration the victim became unconscious due to coma Irom which he could
not recover such incomplete dying declaration was not admissible as no one could tell
what the deceased was about to add.

2. False: II the accused proves by evidence that the deceased gave Ialse evidence, with the
ill intention to implicate the accused in the case, then the dying declaration cannot be
taken into consideration. Where a portion oI dying declaration oI deceased is Iound to be
Ialse, the court can reject that portion iI it can be separated and act upon the rest,
provided the Ialse portion is not likely to destroy the kernel or truth contained in the
dying declaration.

3. Suspicious Circumstances: Where the prosecution case is totally based on dying
declaration which is impregnate with so many suspicious circumstances creating a doubt
as to its genuineness, such evidence oI dying declaration would not be taken into
consideration.

4. Tutoring: II it is proved that there was discussion between the injured person and any
interested person beIore giving the dying declaration or such person giving such
declaration was tutored, then the dying declaration cannot be considered.

5. Delay: II unduly delay has occurred in recording the dying declaration, the veracity oI it
may be aIIected.

6. Cross cases: Where in a Iight between two parties or rival groups, several persons died
on both sides and cross cases Ior death oI either party were started. In such circumstances
the dying declaration oI one could not be used against members oI his own party.

7. Infirmities: Where there were inIirmities in dying declaration regarding state oI
deceased to make oral dying declaration and unnatural conduct oI witness to whom dying
declaration was allegedly given by the deceased which was disclosed to the police aIter
two days oI death oI the deceased, the accused was entitled to the beneIit oI doubt.

8. Death of another person: A dying declaration oI one person is not a relevant Iact with
regard to the question about the death oI another person.

9. hen death not due to injuries in the same occurrence: The statement given by the
injured to the Investigating OIIicer and also the FIR lodged by him, was held not
admissible as dying declaration under Article 46 because there was no evidence to
connect his death during trial to the injuries caused to him in the same occurrence.

10.Accused already named: II somebody had already named who the accused was and that
Iact came to the knowledge oI the declarant beIore making the statement, then such
statement cannot be considered as a dying declaration.

11.Plurality of declaration (conflicting declarations): Where there are more than one
dying declarations and they are inconsistent with each other, it is not possible to pick out
one such declaration wherein the accused is implicated. Such dying declaration cannot be
basis Ior conviction.
The inconsistent dying declarations show the deceased`s conIused state oI mind or the
intention to implicate the accused with whom he had previous grudge or enmity.
The Iact that two diIIerent versions were there in which a set oI two diIIerent persons
were indicated, the mere Iact that one name was common in both the versions, could not
be a basis Ior convicting the named person. II there are two diIIerent dying declaration
giving two diIIerent versions, a serious doubt arises about truthIulness oI the declaration.

12.hen the injured survives: Some times the dying declaration oI an injured person is
recorded expecting that he shall succumb to injuries but he survives. In such cases his
declaration cannot be used as a substantive piece oI evidence. The declaration in such
cases can be use Ior corroboration or contradiction in case the declarant appears as a
witness.

13.Declarant person of unsound mind: Where the person making the dying declaration
was oI unsound mind, then unless there is a certiIicate oI the Doctor stating that the
person is in a mentally Iit condition to make the statement, such statement could not be
relied upon.

14.Declarant person a minor: Although the dying declaration oI a minor is admissible in
evidence but when the person making the dying declaration is a minor, the courts
generally do not rely upon such a statement unless it is satisIied that he IulIils the
competency oI witness as provided in article 3 oI the Qanun e Shahadat.

15.Cause of death or circumstances leading to death are not in question: A dying
declaration is not admissible in such proceedings in which either the cause oI death or the
circumstances leading to the death oI the declarant are not in question.
Defences in cases of where dying declaration is available in evidence:
1- All the deIences available against other type oI evidence oI witnesses. Such as enmity.
2- Dying declaration is incomplete.
3- Accused has not been speciIically identiIied.
4- Exact Role oI the accused not provided.
5- Dying declaration is inconsistent with the other available evidence.
6- Dying declaration is belied by other available evidence, such as medical record or
conIidence inspiring evidence oI eye witnesses.
7- Dying declaration is ambiguous.
8- Declarant did not qualiIy as a witness under Article 3 oI QSO, 1984.
9- Prompting by others.
10-Declaration does not relate to cause oI own death or circumstances leading to own death.
11-Declarant still alive.
12-Dying declaration beIore I.O. is sometimes not admissible in evidence. owever, it may
be used.

CASE LA:
a. 1973 SCMR 26 Muhammad Abdullah Vs. Muhammad Safdar Khan.

The deceased (Muhammad YusuI), who was a B.A., B.Ed. and possibly the
eadmaster oI the local school, was an inIluential person. e was instrumental in
getting Muhammad SaIdar Khan (respondent no. 10 elected Iirst as a member and
then as the Chairman oI the Union Council. But, thereaIter, the deceased turned
against him because the said respondent had started indulging in undesirable activities
and a Iew months beIore his death the deceased actually managed to get a no-
conIidence resolution passed against the said respondent by the Union Council. As a
result oI this resolution, the respondent no. 1 was removed Irom the Chairmanship oI
the Union Council. It is alleged that the respondent no. 1 was annoyed with the
deceased and actually threatened him oI dire consequences. On the day oI the
occurrence Muhammad RaIiq a real brother oI the respondent no. 1, accused slapped
one Allah Ditta on the pretext that he and the deceased were openly opposing the
respondent no. 1. Allah Ditta inIormed the deceased who then along with other
witnesses proceeded with him to the shop oI Muhammad RaIiq. While on the way the
respondent no. 1 opened Iire upon the deceased who was taken to the hospital in
injured condition.
In the hospital Sub-Inspector Gulzar Ahmad who reached the hospital gave
application to the doctor seeking permission to record statement oI the injured. The
certiIicate was granted and he recorded dying declaration.
ThereaIter Magistrate was called and the sub-inspector again applied Ior seeking
permission to record statement, which was allowed. The Magistrate then started
recording evidence but the deceased during recording oI statement died.
Both these dying declarations were produced in evidence besides the
statements oI other witnesses.
The Supreme Court observed that the Iirst statement (1
st
Dying declaration)
recorded by the Investigating oIIicer was not admissible in evidence as the
Investigating OIIicer did not take precaution oI excluding relatives oI deceased while
recording statement. Dying declaration in circumstances cannot be relied upon.
The Supreme Court observed that the second statement (2
nd
Dying
Declaration) was incomplete and thereIore, could not be relied upon because no one
can tell what the deceased would have Iurther added.
Further more the injuries to the other party were not disclosed in evidence
thereIore, the same could not be relied upon. The accused party had acted in selI
deIence. All the accused were acquitted in circumstances.

b. 1972 SCMR 40. Ali Akhtar Hussain Vs The State.

The prosecution case is that the appellant and the deceased were neighbours
living in the locality known as Karbala Road in Sahiwal. It is alleged that the
appellant used to tease the grown up sister oI the deceased which led to the quarrel
between the parties. The appellant gave beating to the deceased on two occasions. On
the day oI the occurrence in the morning the appellant and the deceased had altercated
and exchanged abuses to each other because the appellant had objected to the visit to
the house oI the deceased oI his two Iriends namely Nazir Ahmad and Muhammad
RaIiq PWs. On the same day in the evening the deceased along with the above named
PWs went to the Lris Cinema Ior seeing the picture. The show was to start at 6.30
p.m. the deceased and his two Iriends were standing in the Iront oI the booking
window. The appellant reached on the spot and gave a push to the deceased with his
shoulder. The deceases suspected trouble by the appellant and leIt the Cinema along
with his companions. When they were at a short distance Irom the Cinema the
appellant came running and attacked and inIlicted blows to him with a kniIe. The
incident is alleged to have been witnessed by Nazir Ahmad and Muhammad RaIiq
and also by Muhammad Ali and Muhammad Anwar PWs.
Sher Shah. ASI who was on patrol duty recorded the statement oI the injured
and Fir was lodged on the basis oI the statement. AIter reaching the hospital the
deceased died.
At the trial, the prosecution case was supported by the ocular evidence oI Iour
witnesses and reliance was placed on the dying declaration oI the deceased recorded
by the ASI.
Supreme Court held that Both Muhammad Ali and Muhammad Anwar were
proved to be stock witnesses oI the police. The court held that it appears that the
investigation oI the police oIIice was not above board. e has mentioned in the dying
declaration names oI two eye witnesses namely Muhammad Ali and Muhammad
Anwar who were stock police witnesses. These witnesses have been disbelieved by
the court below and thereIore, the dying declaration is deIective Ior this reason. In
these circumstances much reliance cannot be placed on the dying declaration.
The evidence oI other witness were also not believed. The counsel Ior the
complainant party argued that the statement oI other witnesses is corroborated by the
evidence oI dying declaration. The court held that one piece oI tainted evidence
cannot be corroborated by another tainted piece oI evidence. ThereIore, the accused
were acquitted.


c. 1972 SCMR 651. Sher Bahadur Vs The State.

The prosecution case is that on the 30.04.1968 at 2.30 p.m. the deceased and
his son PW2 Badi uz zaman were taking tea at their bala khana in Bannu city when
the appellants and the co-accused appeared on the rooI oI the adjacent shop oI
Muhammad Ayaz. The two appellants were each armed a Double Barrel Shot gun
while their companions were carrying Single Barrel shotguns. The Iired towards
Gulbaz Khan and his son PW Badi uz Zaman as a result oI which both oI them were
injured. Appellants then descended the stairs and disappeared. The two injured were
taken to the city hospital Bannu and there statements were recorded by the Assistant
Sub Inspector Riaz ussain who having learned oI the occurrence at the Bazar went
to the civil hospital. Gulbaz Khan succumbed to his injuries on the same day at about
10 p.m. and the usual inquest report was prepared and his body was sent Ior post
mortem examination.
Subsequently the accused persons were substituted by another group oI accused
persons and evidence was accordingly changed by the witnesses.
The declaration oI both the injured were taken down when they were lying in injured
condition on the same bed and both had added to the story.
As regard the dying statement oI the deceased it suIIers Irom inIirmity. The motive
was later on changed. This motive was never mentioned in the statement oI dying
declaration. As a matter oI Iact reading the dying statement and the Iirst inIormation
report one gets the impression that the real culprits were the accused person who were
acquitted during trial. The dying statement is undoubtedly the statement oI an
interested person and in the Iact and circumstances oI the case is also required to be
corroborated beIore it could be accepted. The evidence oI PWs Badi uz Zaman and
dying statement both having come Irom interested persons, one cannot be regarded as
corroboration oI the other Ior this would not be an independent corroboration, there is
no independent corroboration available Ior dying statement.
Furthermore, as both the injured were available on the same bed at the time oI
recording oI statement, prompting could not be ruled out. So the dying declaration
cannot be relied upon.
Accused were acquitted in circumstances.

d. PLD 1995 Quetta 56. The State Vs. Doda.

In this case the Iull bench oI onourable igh Court oI Quetta held that:
i. There is no mandatory pre-requisites oI the law that a dying declaration
cannot be made beIore a police oIIicer or that it should always be in
writing. Dying declaration can be oral and communicated by means oI
gestures when the victim cannot speak due to his critical condition.
ii. Dying declaration alone cannot be made a sole basis to award
conviction unless corroborated but such corroboration is not a rule oI
law but a requirement oI procedure.
iii. It is not essential Ior the admissibility oI dying declaration that
deceased must have been apprehending death at the time oI making it.
Only requirement is that such disposition must relate to the cause oI
makers death or the circumstances which resulted in his death.
iv. Dying declaration requires a thorough scrutiny beIore placing reliance
on it and ordinarily it should not be presumed that truth always sat on
the lips oI person who is expecting death.
v. Dying declaration recorded at Police station in presence oI deceased`s
relatives is always suspected to place implicit reliance on it.
vi. Dying declaration must be Iree Irom every sought oI taint and
independently corroborated Ior saIe reliance to record the conviction.
vii. Dying declaration oI the deceased did not appear to be true and not
been recorded according to the established principles and was not
corroborated by an independent evidence. Such dying declaration could
not be saIely relied upon to sustain conviction.