In Section 32 (1) of Indian Evidence Act defines when the statement is made by the person as the cause of his death, or as any of the circumstances of the transaction which resulted in his loss of life, in cases in which the cause of that person’s death comes into question.
Such statements made by the person are relevant whether the person who made them was alive or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
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 Latin maxim Nemo Mariturus Presumuntur Mentri which means that “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 dying man. Hence, the Dying Declaration is Admissible and considered as Evidence in Court, and can be used as a weapon to punish the culprit.
Types of Dying Declaration
Gesture and Signs
In the case of Queen-Empress v. Abdullah the appellant was charged with the offence of murder before the court of session. That he had murdered one DULARI, a prostitute by cutting her throat through RAZOR. It seems that one-morning dulari with her throat cut was taken to the police station and from there to the dispensary.
She was alive till the morning. The post-mortem report shows that the windpipe and the anterior wall of the gullet had been cut through. When Dulari was taken to the police station, she was questioned by her mother in the presence of a sub-inspector. She was again questioned by the sub-inspector, deputy magistrate and subsequently by the 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.
In this regard, dulari makes a negative sign, again magistrate asked her if she had been wounded with the RAZOR. She in answer to this made an affirmative sign. In this way, the magistrate records the dying declaration of Dulari and the same was accepted as evidence to prosecute Abdullah.
Oral and written
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 mugger orally.
An oral dying declaration is admissible in evidence as an exception to the general rule of evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration made before his wife, father-in-law and other near relatives were made in the conscious state.
In the case of Amar Singh v. State of Rajasthan . The deceased’s mother and brother gave the evidence, that the deceased made the statement month prior to the incident of suicide by her that the appellant, her husband used to taunt the deceased saying that she had come from a hunger house and the appellant himself go to the house of deceased and asked for 10.000/-.
It was held that the dying declaration and appellant were convicted under section 304B and 498A of IPC. The Court referred to Pakala Narain Swamy v. Emperor. in which Lord Atkin held that the circumstances of the transaction which resulted in the death of the declarant will be admissible if such transaction has some proximate effect.
Incomplete Dying Declaration
Dying declaration made by the person, which is found to be incomplete cannot be admissible as evidence. When the condition of the deceased is grave and at his own request a statement made by him in the presence of the doctor was later taken by the police but could not be completed as the deceased fell into a coma from which he could not recover. It was held that the dying declaration was not admissible in court as the declaration appears to be incomplete on the face of it.
But the statement, though it is incomplete in the sense but conveys the declarant all necessary information or what he wanted to state yet stated as complete in respect of certain fact then the statement would not be excluded on the ground of its being incomplete.
Question- Answer form
Dying Declaration can be made in the form of Question-answer. the deceased, in some of her statement, did not state the actual part played by the appellant. She merely answered the questions put to her. The court held that when questions are put differently, then the answer will also appear to be different.
At first glance, the detailed description of the offence may appear to be missing but the statement of the deceased construed reasonably. However, when the magistrate records the dying declaration, it must be preferred to be recorded in the form of a question-answer must be preferred.
If there is nothing to doubt that the person who records the statement made by the deceased exact word to word, would not make any difference merely because the same was not recorded in the form of question and answer.
Reason for admitting dying declarations in evidence
A dying declaration is admitted in evidence that is truly based on the principle of “Nemo morituris presimuntur mentiri" (man will not meet his maker with a lie in his mouth). 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 case Uka Ram v. State of Rajasthan, 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 recognizes this fact that “a dying man seldom lies”.
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 dying declaration, it is unsafe and unfair for the base 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.
In 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 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.
Who should record the dying declaration?
1. Recorded by a normal person
A dying declaration can be recorded by a normal person. As in some circumstances where the judicial magistrate, police officer and doctor are not available, the Court cannot reject the dying solely statement made before the normal person.
But the person who records the statement must show that the deceased was in a fit state of mind and conscious while making the statement no matter if the statement is not recorded by Judicial Magistrate, doctor and police officer. The statement is admissible in a court of law.
2. Recorded by the doctor or a police officer
If there is no time to call the magistrate keeping in the mind the deteriorated condition of the declarant, the statement can be recorded by the doctor or by a police officer. But one condition must be coupled with it that while recording the statement there shall one or two-person present there as a witness otherwise the Court may find the statement to be suspicious.
Moreover, the statement record by the doctor, later endorses that the declarant was not in a stable condition and his statement would not be considered as evidence, rectify by the witness that the deceased was in a fit state of mind and conscious to make the declaration.
It was held in the case of N. Ram v. State, that the medical opinion cannot wipe out the direct testimony of an eyewitness which states that the deceased was in a fit mental condition and able to make a dying declaration.
3. Recorded by the magistrate
When the deceased statement recorded by the competent magistrate has deemed to be considered as reliable and attracts the evidentiary value as he presumed to know how the dying declaration should be recorded and he is a neutral person. Moreover, the magistrate has been empowered to record the dying declaration under 164 of Cr. P. C.
Section 164 Cr. P.C states that Sub-Section (1) gives power to the magistrate to record the statement of the dying person, no matter whether he has jurisdiction over that case or not, and in case where the statement recorded by the magistrate who has no jurisdiction, then in that case, sub-section (6) will apply. Here the word “statement” does not confine to only the statement by the deceased and witness but also include a statement of the accused, in order to satisfy him but the accused statement will not amount to a confession.
Section 164 provides a warning. Under this provision the magistrate who records the statement should tell the accused that he has to make only such statement which shall not amount to confession, but if he did so, then the confession can be used against him for the purpose of conviction. This is the sine qua non for recording confession.
The other important requirement is that the Magistrate must raised questions from the wrongdoer to satisfy himself that the confession made by the accused was voluntary so as to enable him to give the requisite certificate under sub-section(4) of this chapter
Evidentiary value of dying declaration
In the case of K. R. Reddy v. Public Prosecutor, it was observed by the court that the evidentiary value of dying declaration made by the deceased:
There is no doubt that the dying declaration is admissible in court under section 32(1) of the Indian Evidence Act. and there is no compulsion while making of dying declaration to take an oath, but the truth of the statement can be determined by the cross-examination. The court has to ascertain necessary measures to check the sanctity of the statement made by the deceased.
After all the measures assured by the court and satisfied that the statement is made voluntarily and true then it will be sufficient to accept the statement to finding conviction even without the corroboration.
The Supreme Court of India in Kushal Rao vs The State of Bombay established the following principles regarding dying declaration :
There is no absolute rule of law that states that a dying statement cannot be used as the sole ground for conviction unless it is backed up by other proof. A real and voluntary declaration that is free from compulsion needs no corroboration.
Each case must be determined after seeing the fact and circumstances of the case in which the dying declaration was required.
A dying declaration is a not weaker evidence than any other form of evidence.
A dying declaration, like any other piece of evidence, must be assessed in view of the surrounding circumstances and in accordance with the rules regulating the weight of evidence.
A dying declaration recorded in an appropriate manner, that is, in a question-and-answer method, by a competent magistrate and as far as possible in the words of the declarant, will stand on the higher footing rather than a dying declaration which depends on oral testimony, which is susceptible to many of the flaws in human memory and character.
To test the reliability of a declarant the court must keep in mind the circumstances like the possibility of the dead man for observation.
The Supreme Court of India has established broad principles of Dying Declaration in the decision of Atbir vs Govt. Of N.C.T Of Delhi :
If the court has full faith in the dying declaration, it can be used as the sole basis for conviction.
The court must be convinced that the declarant was mentally stable while making the statement and that it was not the repercussion of tutoring, prodding, or imagination.
If the court is convinced that the declaration is true and voluntary, it can convict without the need for further corroboration.
A dying declaration cannot be rejected or dismissed simply because it is short. On the contrary, the statement’s brevity ensures its accuracy.
There is no rule of law or prudence that has hardened into a rule of law that stipulates a dying declaration cannot be acted upon unless it is corroborated.
The law is that if the bench is complacent that the dying declaration is authentic and made voluntarily without any compulsion by the declarant, a conviction can be based solely on it. In that case, no corroboration is needed.
A dying declaration should not be dismissed just because it lacks specific information about the event.
Normally, the court will seek medical advice to determine whether the declarant was mentally stable while making the dying declaration. However, where an eyewitness has said that the declarant was mentally stable while making the dying declaration, the medical opinion cannot prevail.
If a dying declaration appears to be suspicious, it should not be followed up on without corroborative evidence.
If after careful examination, the bench is satisfied that it is authentic and free from any effort to induce the declarant to make an untruthful statement and if it is coherent and consistent, there shall be no legal obstruction to make it the basis of conviction, even if there is no corroboration.
Exceptions to the rule of Dying Declaration
There are many circumstances in which the statement made by the dying person is not admissible in a court of law. These conditions are as follows:
If there is no question for consideration about the cause of death of the deceased. For example, if a person in his declaration state anything which is not remote or having a connection with the cause of death than the statement is not relevant and hence not be admissible.
The declarant must be competent to give a dying declaration, if the declaration is made by the child, then the statement will not be admissible in court as it was observed in case of Amar Singh v. State of M.P that without the proof of mental fitness and physical fitness the statement would not be considered reliable.
The statement which is inconsistent has no value and cannot be considered as evidentiary in nature.
The statement made by the deceased should be free from any influential pressure and should be made spontaneous.
It is perfectly allowed to the court if they reject any untrue statement which contradicting in nature.
If the statement is incomplete in the sense which means it can not answer the relevant questions which are necessary to found guilty, and on the counterpart, statement deliver nothing so it will not be deemed to consider.
Doctor’s opinion and the medical certificate should with the statement and support that the deceased is capable of understanding what statement he makes.
If the statement is not according to the prosecution. In this regard, the following points should be taken into consideration by the apex court.
While making the statement deceased must be in fit mind of the state.
Should be recorded by the magistrate or by a police officer and person in a case when deceased was so precarious
A dying declaration should be recorded in question-answer form and written in words of the persons exactly who gives the statement.