Admissibility of Dying Declaration

Manish kumar, a 5th-year Law Student at Lovely Professional University, Jalandhar has written this Article “Admissibility of Dying Declaration“

Introduction– What is Dying Declaration

A “Dying Declaration” is a legal term that refers to the principle of “Leterm Mortem” or words said before death. It is a statement made by a person who is dying that explains the reason for their death. This statement can be circumstantial and explain the cause of death. Therefore, a Dying Declaration is the only statement given by a person just before their death.

The prosecution usually introduces a dying declaration, but it can also be used on behalf of the accused. Whenever an offence is committed, two people are usually involved: the accused, who committed the offence, and the victim, with whom the offence was committed. They both give statements to the judge to prove their positions, but their statements cannot be relied upon to determine the truth as they may be prejudiced or untrue.

Therefore, the role of a witness becomes crucial in determining the truth. However, there is a condition when the statement made by a person is treated as true evidence, despite the fact that they made the statement in their own favour and there is hardly any doubt behind the reason for that statement. That condition is Dying Declaration[1].

Indian law recognizes this fact that “A Dying Person Seldom Lies” or “Truth Sits upon the Lips of a Dying Person. Here the person(victim) is the only eyewitness to the crime, and the exclusion of his statement would tend to defeat the end of justice.

A dying declaration is admissible because it is a statement of that person who is dead or who cannot be found. The person who is conscious of Compos Mentis and knows that death is about to happen can make a declaration and state the cause of his death and that statement will be Admissible and treated as Evidence in the Court.

Declaration made by the deceased person can be oral, written and by conduct.

The word Dying Declaration explain the word itself. The main justification for approval of the data is that there is no higher proof. The statements made by a deceased person before his death where the person describes the cause of his death or as to circumstances that lead to his death is called a dying declaration.

Definition & Meaning of Dying Declaration

The Indian Evidence Act defines a dying declaration as statements made by a deceased person before their death, where the person describes the cause of their death or the circumstances that led to their death.

According to Section 32 (1) of the Act, such statements made by the person are relevant when the cause of their death comes into question, or as any of the circumstances of the transaction which resulted in their loss of life. These statements are considered valid whether the person who made them was alive or not at the time they were made, regardless of the nature of the proceeding in which the cause of their death is being questioned.

The statement made by the deceased person will be treated as Evidence and Admissible in a Court of law. The reason behind this can be followed by the Latin maxim Nemo Mariturus Presumuntur Mentri which means “Man Will Not Meet His Maker With Lying On His Mouth.

More precisely in our Indian law, it is the fact that the dying man can never lie or Truth sits on the lips of the dying man. Hence, the Dying Declaration is Admissible and considered Evidence in Court, and can be used as a weapon to punish the culprit.

Admissibility of Dying declaration in courts under Indian Laws

The general belief is that most people who know that they are about to die do not lie, which is why a dying declaration is considered credible and trustworthy evidence. The hearsay rule prohibits the use of a statement made by someone other than the person who repeats it while testifying during a trial because of its inherent untrustworthiness. However, an exception is made for a dying declaration.

The prosecution usually introduces it, but it can also be used on behalf of the accused. The main reason for the admissibility of a dying declaration is that the deceased person cannot be called upon.[2].

A dying declaration does not require any corroboration as long as it creates confidence in the mind of the Court and is free from any form of tutoring.

In the case Uka Ram v. State of Rajasthan, The court talked about the admissibility of a Dying Declaration and held that the dying declaration is admitted upon consideration is made in extremity; when the maker of the statement is at his bed end, every hope of this world is gone; and every motive of falsehood is silenced and mind induced to speak only truth. Indian law recognises the fact that “a dying man seldom lies”.

Legislation prescribed for admissibility of dying declaration and its essentials

The concept of dying declaration is explained in Section 32(1) in The Indian Evidence Act, 1872 and is one of the exceptions to the general rule prescribed in Section 60 in the Evidence Act,1872 which explains that oral evidence in all instances must be direct i.e. it must be the evidence of testimony. Even though a dying declaration has not been made under oath and the person making it cannot be cross-examined still it is accepted in the court.

Ingredients of dying declaration to be admissible in court

• The person who is giving the dying declaration must die.
• The dying declaration must not be incomplete.
• It must be done without any extra compulsion and freedom.
• The cause of death must be explained which leads to the death of the deceased or at least the circumstances which lead to his death must be explained.
• The declarant who is making a dying declaration must be conscious of what is happening near him.
• The person must be of sound mind.
• The cause of death of a person should be in question.

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. It can be Oral, Written, Gestures & Signs, Thumb impression, and Incomplete and can also be in the form of a Question Answer.

The statement produced must include a clear and explicit assertion made by the individual. It may be good for the declaration to be documented in writing, using the exact words uttered by the person who made the statement. When a magistrate records a dying declaration, it should be done in a Question-Answer format to ensure that the maximum information is obtained accurately. This is because in certain cases, a dying declaration becomes the only means to assist in the conviction of the accused.[3].

The types in the elaborative form:

1) Gesture and Sign– Dying Declaration can be given in the form of gestures and signs and it is admissible

In the case of Queen-Empress v. Abdullah, the defendant was accused of the murder of a sex worker named Dulari by cutting her throat with a razor.

The incident occurred on a particular morning when Dulari was taken to the police station and then to the dispensary, still alive. However, her throat had been cut, and the post-mortem report indicated damage to her windpipe and the anterior wall of her gullet.

While at the police station, Dulari was questioned by her mother in the presence of a sub-inspector, then later by the sub-inspector, deputy magistrate, and assistant surgeon. She was unable to speak but conscious and able to make gestures and signs. Magistrate asked dulari, as who had wounded her, but due to the injured condition dulari was unable to speak.

After that, The magistrate mentioned several names one by one and asked if they had wounded her. Dulari moves her hand forward and backwards and made negative and affirmative signs.

Subsequently, the magistrate asked whether Abdullah had wounded her, for that dulari waved her hand made the sign in the affirmative, the magistrate recorded the statement. After that question was put to her that if she been wounded with a knife or sword. When asked about her injuries, Dulari made a negative sign.

However, when the magistrate specifically asked if she had been wounded with a razor, she made an affirmative sign. The magistrate recorded Dulari’s dying declaration in this manner, and it was later accepted as evidence to prosecute Abdullah.

Similarly in the recent case of “Nirbhaya’s Rape Case,” the victim’s dying declaration was made through signs and gestures. Her declarations were recorded, with the first one being documented by the doctor when she was admitted to the hospital on December 16, 2012, and the second by the sub-divisional magistrate on December 21. During the second declaration, she provided precise details of the incident. The third declaration, which was recorded on December 25 by the metropolitan magistrate, was mostly conveyed through gestures. The court deemed the third declaration admissible as evidence, stating that it had already ruled that dying declarations made through signs, gestures, or nods are valid forms of evidence.

Oral and written– Admissibility of dying declaration in the oral and written form

When the person gives the name of the murderer to a person present and written by any of them then it is a relevant dying declaration.

However, people may dispose of the name of the accused or incident orally.

• An oral dying declaration is an exception to the general rule of evidence that hearsay evidence is not admissible in court.
• In the case of Amar Singh v. State of Rajasthan, the deceased made an oral dying declaration before his wife, father-in-law, and other close relatives while in a conscious state.
• The deceased’s mother and brother testified that the deceased had made a statement a month prior to her suicide, indicating that the accused, her husband, used to taunt her about coming from a poor family and that he had even gone to her house and demanded 10,000 rupees.
• The court held that the dying declaration was admissible, and the accused was convicted under sections 304B and 498A of the Indian Penal Code.
• In making this determination, the court referred to the case of Pakala Narain Swamy v. Emperor, in which Lord Atkin held that the circumstances surrounding the transaction leading to the declarant’s death would be admissible in court if such transaction had a proximate effect.

Incomplete Dying Declaration– Not admissible

The court held that a dying declaration made by a person, which is found to be incomplete, cannot be admissible as evidence.

In a case where the condition of the deceased was grave and the person made a statement in the presence of a doctor at their own request, but later fell into a coma and could not complete the statement, the police took the statement.

However, the court ruled that the dying declaration was not admissible in court as the declaration appeared to be incomplete on the face of it.

Note– If the statement conveyed all necessary information or what the declarant wanted to state, and was stated as complete in respect of certain facts, then the statement would not be excluded on the ground of its being incomplete.

The deceased stated,

“I was going home when I came near the house of Abdul Majid, Sohail shot me from the bush. He ran away. I saw.”

This was the dying declaration made by the deceased and further was unable to answer the questions. It was held that there is no question of incompleteness so far as the context of the case is concerned.

In the case of Muniappan v. State of Madras, the deceased made the dying declaration as follows :

“Sir, This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after he was dead. This declaration against Muniappan was complete and admissible.

Question- Answer form

• Dying Declarations can be made in the form of question-answer.
• Sometimes, the deceased may not state the actual part played by the accused, but only answer the questions put to her.
• The court held that the answers may vary based on the way the questions are put, but the statement of the deceased should be construed reasonably.
• However, it is preferred that the dying declaration be recorded in the form of a question-answer.
• If there is no doubt that the statement made by the deceased was recorded word-to-word, it would not make a difference whether it was recorded in the form of a question-answer or not.

Reason for admitting dying declarations in evidence

A dying declaration is admitted in evidence that is truly based on the principle of “Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in his mouth). A dying declaration does not require any corroboration as long as it creates confidence in the mind of the Court and free from any form of tutoring.

In the case Uka Ram v. State of Rajasthan the Court held that,

“Dying declaration is admitted upon consideration is made in extremity; when the maker of the statement is at his bed end, every hope of this world is gone; and every motive of falsehood is silenced and mind induced to speak only truth. Indian law recognises the fact that “a dying man seldom lies”.

The fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the statement must be in a fit state of mind. If the court has the slightest doubt about the mental soundness of the maker of the dying declaration, it is unsafe and unfair the base it on such a statement.

The mere fact that the victim in his dying declaration did not make any reference to injuries received by the accused is not a genuine ground that decides the merit of dying declaration. Where the dying declaration was recorded by the doctor who himself certified that the patient was in a fit condition for giving the statement, his non-mentioning that the patient was in a fit mental condition and throughout remained conscious would be of no consequence.

Case laws

(1) State of M.P. v. Dhirendra Kumar

In the case State of M.P. v. Dhirendra Kumar, the mother-in-law of the deceased was in the position to reach the upstairs within 5 to 6 minutes after hearing the cry of the deceased. According to the opinion of the autopsy surgeon, the deceased was able to speak for about 10-15 minutes. The Supreme Court did not agree with the view of the High Court that the deceased is not in a position to make the dying declaration, as it was reaffirmed by the autopsy report and circumstances of the case that the deceased was in a fit state of mind to talk when her mother-in-law reached the place where the deceased was dying.

(2) State of Orissa v. Parasuram Naik

In the case State of Orissa v. Parasuram Naik, the accused, the husband alleged that he poured petrol on the body of his wife and lit a fire. Whereof extensive burn injuries were sustained by the deceased wife. It was held that the oral dying declaration to her mother can not be accepted because there was no certificate by the medical officer certifying that the deceased was medically fit to make a statement. It is improper to reject the dying declaration on the ground that the fitness of the maker depends solely on the certificate of the doctor and the magistrate himself did not require independently as to whether the deceased was in a fit state to make a dying declaration.

(3) Arvind Kumar v. State of Rajasthan

In the case of Arvind Kumar v. State of Rajasthan, the dying declaration was found unreliable due to several infirmities such as the absence of a certificate of the deceased’s fit state of mind, the lack of endorsement by the doctor, and the refusal of the mother to sign or thumb impression on the document. However, the accused were convicted based on other evidence.

(4) Dhanraj and other v. State of Maharashtra

In Dhanraj and other v. State of Maharashtra, the absence of a medical certificate was not a problem because the circumstances showed that the deceased was in a fit state of mind to give a statement. The certificate of fitness given by the doctor was accepted by the court, which carefully balanced it with other surrounding facts and circumstances.

(5) Rajeev Kumar v. State of Haryana

In Rajeev Kumar v. State of Haryana, the medical report did not conflict with the eyewitness evidence that the deceased was able to speak when their dying declaration was recorded. Therefore, the court relied on the dying declaration.

Multiple dying declarations

Supreme Court Of India held that multiple dying declarations can be relied upon without corroboration,

1. If there are multiple dying declarations, they can be relied upon if there is consistency in all of them.
2. If the dying declarations are different from each other, the court will examine the facts of the case or the statements of other witnesses to ascertain the truth.
3. The statement of the deceased should match the facts of the case.
4. The nature of the dying declaration should be understood carefully.
5. Multiple dying declarations can be relied upon without corroboration if they are consistent.

Consistency in all the dying declarations should be there. If all the dying declaration does not match, then the court will examine the facts of the case with the dying declaration Or examine the witnesses.

In Kushal Rao v state of Bombay, this case set the importance of dying declaration and what is the right process to record it. In this case, if the dying declaration is recorded in question-answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is admissible and reliable. If there are multiple dying declarations, then the court looks into all these points to see which dying declaration holds more evidentiary value.

The Supreme Court has held that multiple dying declarations can be relied upon without corroboration if consistency is maintained throughout. Otherwise, the courts would have to examine the statement of other witnesses to ascertain the truth in a criminal trial.

F.I.R as dying declaration

The court held that when an injured person lodges a First Information Report (FIR) and then dies, the FIR will be relevant as a dying declaration.[6].

In Munnu Raja and another v. State of M.P, the Supreme Court Of India held that statement by an injured person recorded as FIR can be treated as a dying declaration and such a statement is admissible under Section 32 of the Indian Evidence Act. It was also held that the dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation, Dying declaration can be the sole purpose for conviction.

Admissibility of a dying declaration recorded by Police

In the year 2022, in the case State of Jharkhand vs Shailendra Kumar Rai Alias Pandav Rai  The Supreme Court observed that a dying declaration does not become inadmissible only because it was recorded by police personnel.

Ideally, it is to be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone, the bench of Justices DY Chandrachud and Hima Kohli said.

Conclusion– Admissibility of Dying Declaration

A dying declaration is one of the most important pieces of evidence that is admissible in court as a dying declaration can be the sole purpose for the conviction of the accused.

The court should record the dying declaration carefully according to the procedure mentioned and ensure that it is not tampered with by anyone. If the dying declaration is incomplete, the court has the discretion to reject it.

The Indian Evidence Act allows for dying declarations, which are statements made by a dying individual regarding the wounds that led to their death or the injuries inflicted upon them. Such declarations must be recorded before the person’s death and cannot be admitted as evidence after their death.

The main justification for approval of the data is that there is no higher proof. A formal or spoken news release with the necessary information about a deceased individual is the phrase “the death announcement.” It is a declaration from the individual who died describing the details of his passing. Anyone who is aware and acknowledges death is inevitable of what he or they claims to lead to death is the trigger or circumstances of death.

To sum up the article we can say,

A dying declaration is a statement made by a person, who is either deceased or cannot be found, regarding the cause of their own death or any circumstances surrounding the same. In Indian law, a dying declaration is admissible as evidence under section 32(1) of the Indian Evidence Act, of 1872.

According to the act, a dying declaration is a statement made by a person, who is at the point of death, stating the cause of their death or the circumstances leading to their death. The statement may be oral, written or made by signs, and it must relate to the facts that led to the person’s death.

To be admissible as evidence, a dying declaration must meet the following criteria:

1. The statement must be made by a person who is about to die, and they must believe that their death is imminent.
2. The statement must be related to the cause of the person’s death or the circumstances leading to their death.
3. The statement must be made voluntarily and without any external pressure.
4. The statement must be reliable and truthful, and it should not be influenced by any extraneous considerations.

If a dying declaration meets these criteria, it can be used as evidence in a court of law, even if the person who made the statement is not available to testify in person.

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[2] Admissibility, Available at:https://www.youtube.com/watch?v=tCmEw3DPIAk&t=297s(Last visited on Sept 26^th, 2021)

[3] Types of Dying Declaration, Available at:https://blog.ipleaders.in/dying-declaration-sole-reason-conviction-analysis/(Last visited on 28^th, 2021)

[4]Multiple dying declaration, Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3688510(Last visited on Sept 30^th, 2021)

[6] F.I.R as dying declaration, Available at:https://www.youtube.com/watch?v=tCmEw3DPIAk&t=297s(Last visited on Oct 1^st, 2021)