Dying Declaration: Provision, Procedures and Admissibility

By Priya Dutt [1st Year Student at CNLU Patna (2029 Batch)]

What is a “dying declaration”?

A dying declaration is a statement made by the person related to his death or the circumstances of the transaction that resulted in the death of the person. It is not a recent phenomenon but is present as a form of evidence since the antiquity of the time. It is made by the person who is on the verge of dying or who knows about his impending death.

A dying declaration is a type of judicial evidence which means that it is accepted in a court of law as evidence of facts. It is an exception to the ‘hearsay evidence’(Section 60 of the Indian Evidence Act.[1]), which is inadmissible in the court. Hearsay evidence means that the person who is giving the statement doesn’t have direct experience of the incident but from the word of mouth of the other person. A dying declaration is also a hearsay statement but it is admissible in the court as evidence because it is believed that at the time of the death, the circumstances which are created around the person are very emotional, sensitive and the person facing the death will refrain from lying in that time.

The principle on which a dying declaration is based on the Latin maxim “nemo moriturus praesumitur mentri” which means that a man will not meet his creator with a lie in his mouth. There is a belief that a dying person will not have any ulterior motive while he is expecting his death. In many cases, the admissibility of the dying declaration is based on the principle of necessity to determine the facts related to the death of the person.

Legal provision related to “dying declaration”

Section 32 (1) of the Indian Evidence Act [2] talks about the dying declaration: –

Statements, written or verbal, or relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:

When it relates to cause of death. – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

It is applicable in court when the death of the declarant is in question and being investigated by the court. The statement made by the victim before his death related to the death of the victim is taken into consideration.

The grounds for admission of a dying declaration

The necessity to admission the dying declaration is that the victim is the only eye-witness to the crime and if his last statement will not be taken into consideration as evidence then it will lead to injustice.
When there is a sense of impending death about his own life then the person is in that state of mind which makes it impossible to lie.

Essential conditions for the applicability of dying declaration: –

The person who is making the statement must have died: –

As the name suggests it is a dying declaration, the person who has given the statement must need to be dead for admission of the statement as a ‘dying declaration’. The death need not occur just after the statement has been made. The person who is proposing to give evidence of the statement needs to prove that the person is dead.

Statement made by the dying person must relate to the cause of his death or the circumstances which resulted in the death: –

The statement must be about the death of his own and not the other person. The statement must have a proximate relation to the cause of death and only the general statement of fear or suspicion is inadmissible.

Illustration-

If a deceased says, “I was stabbed by X” as this is directly related to the death of the person that’s why it is admissible in court but if the deceased makes a statement such as “fear that X might kill me” is too vague and disconnected from the actual events leading to death. Thus, it lacks evidentiary value.

Ratan Gond v. State of Bihar [3]

In this case, the wife died by suicide after stating that her husband had been killed by the person Z. Court didn’t consider the statement as a dying declaration. The statement made was not about the death of her but the death of her husband.

The cause of death must be in question: –

Dannu Singh v. Emperor [4]

In this case, A and five other people collectively decided to commit a dacoity in a village. A who was seriously wounded while being arrested stated before his death that he and five others were responsible for the dacoity in the village. In the court of law, the statement was not admissible as evidence against other persons, as it is not related to the death of the person ‘A’ but relates to his and the other five participation in the incident of dacoity.

The statement made must be consistent and complete: –

The deceased must complete the motive or genesis or the motive of the crime otherwise it would be unreliable. But if the deceased completed the full story and wanted to say something more but failed to answer the last question, this will not make the statement unreliable. A dying declaration cannot be rejected just because it suffers from minor inconsistencies.

In Surajdeo Oza v. State of Bihar [5], bride recorded two statements, one to the police officers and the other to the Magistrate, there were similar in relation to the material factors and only minor discrepancies were there. So, the statement was admitted in court as evidence.

In Kamla v. State of Punjabv[6], the victim Kamla succumbed to severe burn injuries under suspicious circumstances shortly after her marriage. Her mother-in-law was accused of the same and her prosecution relied on the dying declaration made by Kamala. The main concern in this case was that there were multiple dying declarations with different material factors in each of them. One dying declaration indicated the incident was an accident. While the other implicated her mother-in-law, therefore inconsistencies arise. The court decided that the dying declaration could not be admissible.

Declarant must be competent as a witness

For admission of a dying declaration, if the declarant had lived on, he would have been a competent witness.

In R. v. Pike [7], it was a prosecution for the murder of a four-year-old child, it was supposed to be put in evidence as a dying declaration, what the girl said before her death. The declaration was not admitted in court.

Other points to remember for a dying declaration.

In Govind Narain v. State of Rajasthan [8], the person who noted down (scribe) the statement was not produced, and the declaration was not accepted as evidence because the scribe was absent due to unexplained reasons.

In K. Ramachandra Reddy v. Public Prosecutor [9], it was held that if the informant died after the registration of the F.I.R. then it could be admitted in a court of law as evidence in the form of a dying declaration.

In Mohanlal Gangaram Gehani v. State of Maharashtra [10], it was held that if there are two or more dying declarations the one first in time should be preferred.

Compliance of dying declaration with Section 164 of the Criminal Procedure Code[11]: –

The admissibility of the dying declaration does not depend on this section which states if the party refuses to produce a document after he had notice to produce it, then in future he cannot use the document as evidence without the consent of the other party or the order of the court.

What is the difference between English Law and Indian Law: –

Even though this concept has been inherited from English law there are differences between them.

Under English Law, the applicability and scope of the dying declaration is very narrow. It is admissible only on criminal charges of homicide or manslaughter. Whereas in India it is admissible in all proceedings, both civil and criminal.
Under English Law, it is necessary that the declarant should know about his impending death, whereas in Indian Law it is not necessary that the declarant at the time of giving a statement should know about his impending death.
Under English Law, the declarant must have been competent as a witness if he was alive and thus it bars imbecility (mental capacity) or tender age (too young to understand the seriousness of the situation). Whereas in Indian Law, the competency of the declarant is not a pre-condition for admissibility, the statement is admissible as long as it is relevant and reliable.

Circumstances when a dying declaration is meaningless: –

As we know there is no ironclad rule to determine which statement can be admissible and which can not be. It is decided on a case-to-case basis: –

If the judge finds out that the relatives of the declarant made him say what he has said or tutored him; Varand v. Emperor[12].
When it is proved that the maker of the declarant was unconscious or semi-conscious at the time of making the statement and dies shortly afterwards then the conviction cannot be done on the sole basis of declaration as in this state person becomes unable to properly articulate the facts held in Bhagwan Dass v. State[13].
When the statements made by the declarant and the statement made by the witness are not consistent held in Bapu Rao v. State of Maharashtra[14].
When the dying declaration is vague and it is impossible to determine the identity of the accused then the statement can not be admissible held in Mohmad Syed v. State of Maharashtra[15].

Difference between a dying declaration and a dying deposition-

Dying Declaration	Dying Deposition
The statement made by a dying person to anyone about his death to anyone who is present when the statement is made. E.g.- doctor, magistrate, police officer, normal person.	It has to be made before a magistrate.
The statement need not be made on oath.	It is made on oath and before a person who is authorised by law to take evidence.
It is not subject to cross-examination.	It is subject to cross-examination by the accused’s lawyer.
Weaker than dying deposition.	Stronger than dying declaration.
It is used to provide evidence of a crime.	To preserve the testimony of the witness.
There is no chance of recovery of the declarant.	There is a hope that the declarant will recover.
Admissible as evidence in court.	Not admissible as evidence in court.
Applicable in India.	There is no specific provision in Indian law for it.

What is the procedure in law to record the dying declaration?

There is no ironclad rule to record the dying declaration. It is not necessary to record the statement by the magistrate. There are various people who can record the dying declaration: –

Any person—When there is no time available for the declarant to wait for a magistrate or other authority to arrive, the person present there can record a dying declaration. The witness (scriber) should ensure that the declarant is conscious and understands the seriousness of the situation before taking the statement.
Magistrates– It is one of the best ways to ensure the credibility of the statement because the magistrates are judicial officers authorised to take dying declarations and they are impartial.
Police officers: They can also record the dying declaration of the person because they are the first to reach any place of crime or accident and can encounter the near death of individuals. They can also use this statement to do the investigation of the incident.
Doctors: Whenever a doctor is examining any critical patient then it is important that they are present when the dying declaration is being made to ensure that the patient was conscious when the statement was made and was mentally fit to understand the critical situation.

Whenever the conviction is solely based on the dying declaration then it is the duty of the court to scrutinise the dying declaration with the required care. It is not important to always corroborate the dying declaration, it is based on the rule of prudence and not the rule of law.

In the case of Pandian K Nadar v. State of Maharashtra [16] and Prem Chand v. State of U. P [17], in this case, even though there was no certificate from the medical professional the dying declaration was held valid by the court because it was recorded by the Special Executive Magistrate, who acknowledged that the declarant was physically and mentally fit to give the statement which was also later supported by the police officers. It is important that the proper date, timing and signature or fingerprint of the declarant should be taken on the dying declaration to give authenticity to the statement. If all of these are missing then it will not be admissible because it blemishes the authenticity of it.

Different forms of the dying declaration: –

Question-answer form–

The standard format to record any dying declaration is in the form of a question-answer format. But it can not be the sole reason to deny its admissibility in the court. It needs to be short and to the point. In the case of Ram Bihar Yadav v. State of Bihar [18], the court observed that if the statement is recorded in the form of narration, then it is more natural and reflects the reason for the death of the declarant then it is admissible. But if the witness who acted as recorder of the dying declaration stated that the declarant gave the statement in the form of question-answer format but the declaration submitted before the court was not in the form of question-answer, then that will be discarded.

Oral dying declaration-

It can sometimes happen that recording of the statement of the declarant was not done in written format but orally. The witness representing such oral record has to give it in from out-of-brain memory which means that it must come from their own direct recollection of what they experienced or heard, not from notes, documents, or second-hand information. The exact word of the declarant shall be reproduced before the court. If the court finds any discrepancies in the same then it will affect the evidentiary value of such a dying declaration. There can be a need for corroboration of the oral dying statement.

In the case of Amar Singh v. State of Rajasthan [19], appellant was the husband of the victim who died by suicide. The victim’s mother and brother gave evidence that the victim month prior to her death informed them that she was being tortured by her husband who used to taunt her that she came from a hungry house and her husband i.e. appellant came to her house to ask for Rs 10,000/-. The dying declaration was taken into consideration and the appellant was convicted under Section 304B of the Indian Penal Code [20] and Section 498A of the Indian Penal Code [21].

Gesture and Signs–

In the case of Queen-Empress v. Abdullah [22], a prostitute named Dulari was killed by the appellant Abdullah. One morning Dulari was found with her throat cut through a razor. She was first taken to the police station and then to the dispensary, she was alive till the morning. At the police station, she was questioned by her mother in the presence of a sub-inspector, then questioned by the sub-inspector, deputy magistrate and then by the assistant surgeon.

She was unable to speak but was conscious, when the magistrate asked her who had done this to her, she didn’t take the name of Abdullah. Then the magistrate mentioned several names one by one. Dulari had to move her finger backwards and forward to give her answer. When the magistrate took the name of Abdullah, Dulari made the gesture in affirmative, the magistrate recorded the statement.

Then the weapon used to wound her was asked and the magistrate gave options like a sword, and needle she gave a negative sign but when he gave the option of a razor she made an affirmative gesture. It was accepted as evidence and Abdullah was convicted on this basis.

In the Nirbhaya rape case also there was the use of gesture, the first statement was given to the doctor on the night when she was admitted i.e. December 16, 2012, and the second on December 21 by the sub-divisional magistrate but when the metropolitan magistrate came to record the statement, she was not in the state to give it. So, her statement was mostly in the form of gestures.

Incomplete dying declarations

Whenever there is an incomplete dying declaration then it is not admissible in the court. If on the request of the deceased, the statement is recorded in the presence of the doctor but in the middle of the statement, the deceased fell into a coma and was able to make it. The statement can not be admissible in the court as it appears to be incomplete on the face of it.

It is also considered that even though the statement is incomplete it gives all the information required for the conviction of the accused and his death then the same is admissible in the court.

In the case of Muniappan v. State of Madras [23], the deceased made the following statement before his death-

“Sir,

This day 24^th January 1960 in the afternoon at 12:30 Muniappan’s son Kola Goudan of Kamnav-Kurechi stabbed me in my body with a knife.”

The deceased wanted to talk more but soon he died, even though his statement from the deceased side was incomplete it gave all the information about the accused. Therefore, the declaration was complete and admissible.

Landmark case laws

Khushal Rao v. State of Bombay [24]

Facts– The case revolves around the murder of Baboolal, Khushal Rao and three others were accused of the attack on Baboolal with swords and spears which resulted in severe injuries. He was taken to the hospital but wasn’t able to make it. The prosecution case depended on the three dying declarations made by Baboolal before the doctor, police inspector, and Magistrate.

Legal Issues Raised– The primary issue was whether the conviction should be done only on the basis of the dying declaration or whether there is a need for corroboration of the declaration. Different High Courts gave different views on the admissibility of the dying declaration.

The Supreme Court laid down the following principles: –

There is no absolute law for the corroboration of the dying declaration by other evidence to convict anyone. Dying Declaration is sufficient on its own if found reliable.
Each case is judged on the unique circumstances in which the dying declaration was made.
Dying declaration is not inherently weak and it holds the same legal value as any other admissible evidence.
A dying declaration is more trustworthy than a confession or an approver’s evidence (An approver is a former accused or accomplice who turns a witness for the prosecution and decides to support the case of the prosecution and in return grant a pardon by the court) since it does not typically come from a compromised or tainted source. However, the credibility of the declarant may still be examined if their character is doubtful.
To decide whether to rely on the dying declaration or not, the court has to consider a lot of factors such as: Whether the declarant had sufficient opportunity to observe the incident (if it had taken place in any darker area), whether due to the incident the defendant is in the state i.e. mentally fit to give a truthful statement if multiple dying declaration has been given are they coherent, whether the statement had been recorded at the earliest or being tutored by someone.
If the dying declaration is recorded by a magistrate who is the most competent person to do so in question-answer form, is more reliable than the oral statement because it can blemish due to human error or memory lapses.
The court has the power to decide the case solely based on the truthfulness and reliability of the dying declaration but has to make sure that the statement’s credibility has not been compromised.
Kusa v. State of Orissav[25]

This case deals with the reliability of a dying declaration without corroboration established.

Facts: This case revolves around the murder of two individuals, Ghansham and his brother Antarjami. Kusa who is the appellant in the case is charged with the murder of both of them with other accused. There was a property dispute among them. The prosecution claimed that the accused attacked Ghansham at his house calling him out with weapons such as lathis, and knives and after listening to the cry of his brother he came out. Ghansham was fatally stabbed in the chest by an accused, Banshi and when Antarjami tried to intervene he was also assaulted by them which resulted in the death of both of them. The trial Court acquitted all the accused but the High Court considered the dying declaration and convicted all of them.

Issue Raised-

The key issues are

The dying declaration didn’t contain all the names that were included in F.I.R.
Statements of eyewitnesses are also different.
The deceased was in a state of shock due to the incident. Hence, not mentally fit to understand the environment and give a statement.
Declaration is incomplete as the deceased was not able to answer the last question put to him (the doctor asked him if he had anything more to say but he lapsed into unconsciousness without answering the question).

Judgement:

The court found that there was no substantial evidence that the declarant lacked mental clarity. The doctor in the case gave the statement that the declarant became semi-conscious in the last question which means that he was conscious before and was fully competent to give the statement. The last question is just a formality in which it was asked what you want to say. Even though there are certain names missing from the dying declaration which were mentioned in F.I.R. it doesn’t mean that the dying declaration is false.

As there has been the introduction of new laws in India, so dying declaration has been given in Section 26 of the Bharatiya Sakshya Adhiniyam.

Conclusion

A dying declaration is a valid form of evidence used by the court to deliver justice. There are times when no other evidence is there at that time it is of prime importance to have a dying declaration for the conviction of the accused. Even though hearsay evidence is not acceptable as evidence but dying declaration is accepted because it is believed that the person who is going to meet his creator will not meet him with lies in his mouth. There is no jacket rule to decide which declaration is reliable and which is not. The court uses the rule of prudence to decide and not the rule of law on a case-to-case basis. If the court believes that there is no need to do corroboration of the dying declaration then it will not be done and the case will solely be decided on the case. A dying declaration doesn’t need a specific procedure to make it valid but it can be in the form of question-answer format, gestures and even oral statements. As the name suggests the declarant needs to be dead for admission of dying declaration. It has been so helpful to give justice in many cases as sole evidence.

[1] Indian Evidence Act, No. 1 of 1872, § 60 (Ind.)

[2] Indian Evidence Act, No. 1 of 1872, § 32(1) (Ind.)

[3] Ratan Gond v. State of Bihar, (1959) SCR 1336 (Ind.)

[4] Dannu Singh v. Emperor, (1917)19BOMLR510 (Ind.)

[5] Surajdeo Oza v. State of Bihar, (1979) SC 1505 (Ind.)

[6] Kamla v. State of Punjab, (1993) SC 374 (Ind.)

[7] R. v. Pike, (1829) 3 CLP 598.

[8] Govind Narain v. State of Rajasthan, AIR 1982 SC 1021 (Ind.)

[9] K. Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 (Ind.)

[10] Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839 (Ind.)

[11] The Criminal Procedure Code, No. 2 of 1973, § 164 (Ind.)

[12] Varand v. Emperor, AIR 1944 Sind 137.

[13] Bhagwan Dass v. State, AIR 1957 SC 589 (Ind.)

[14] Bapu Rao v. State of Maharashtra, AIR 1968 SC 855 (Ind.)

[15] Mohmad Syed v. State of Maharashtra, AIR 1997 SC 3808 (Ind.)

[16] Pandian K Nadar v. State of Maharashtra, 1994(3) BOMCR295 (Ind.)

[17] Prem Chand v. State of U.P, (2020) 3 SCALE 310 (Ind.)

[18] Ram Bihar Yadav v. State of Bihar, 1998 SCC(CRI) 1085 (Ind.)

[19] Aamr Singh v. State of Rajasthan, 1968 AIR 79 (Ind.)

[20] The Indian Penal Code, No. 45 of 1973, § 304B (Ind.)

[21] The Indian Penal Code, No. 45 of 1973, § 498A (Ind.)

[22] Queen-Empress v. Abdullah, (1885) ILR 7ALL385

[23] Muniappan v. State of Madras, (1962) AIR 1252 (Ind.)

[24] Khushal Rao v. State of Bombay, (1958) AIR 22 (Ind.)

[25] Kusa v. State of Orissa, (1980) AIR 559 (Ind.)

Post Views: 226

Evidence Law