This article is written by Nikhilesh Koundinya, Symbiosis Law School, Pune. In this article he has discussed about the admissibility of dying declaration.
Dying declaration refers to a statement made by a victim regarding the causes of his death or circumstances that lead to his death eventually. To put into simpler words, it refers to a situation where the person is about to die or will eventually die due to his condition. A statement made by the victim acts as a great evidentiary value in the eyes of law. The concept of dying declaration is based on the maxim of “Nemo moriturus praesumitur mentire” which essentially means that a person will not meet his maker with a lie in his mouth. It is believed in the legal world that a person who is going to die will not lie or seldom lies. Under Indian law, the dying declaration is recognised under section 32 (1) of the Indian Evidence Act.
Under Indian law dying declaration is used by courts for necessity. This is because sometimes the only eye witness in the case is the victim. If the victim’s statement is not taken it would lead to defeating the purpose of the law which is to provide justice to the person who has suffered the harm. Section 32 of the Indian Evidence Act deals with cases where a person is dead or not to be found. A dying declaration can also be referred to as “Leterm Mortem” which means words said before death. A dying declaration is accepted as evidence even though there is no oath administered and no cross-examination is allowed against a declaration. The principle of hearsay is put aside when we talk about dying declaration because the court believes that a dying victim would not lie about the incident or circumstances. Even then the law prescribes that recording of a dying declaration is a very important step under collecting evidence. Thus, collection of a declaration should be done by proper authority and the victim should be able to communicate the circumstances and the acts that happened which lead to the circumstances of his death. A dying declaration in court is normally entered by the prosecution, though in exceptional cases even the defence is allowed to enter a declaration.
Though many legal practitioners have questioned the validity of a dying declaration the court under the case of P.V Radhakrishna v State of Karnataka [i]held that in certain cases the victim is the exclusive eye witness and hence the dying declaration cannot be excluded. There are many circumstances in which such a declaration becomes important but, in this article, we are mainly focusing on when circumstances lead to a person’s death. In light of the previous sentence we will observe clause (1) of section 32 of the Indian Evidence Act:
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. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question[ii]. This definition was further enumerated in the case of Ulka Ram v State of Rajasthan.[iii]
To explain this clause further we must take an example. In a particular case, the court is asking the question whether A was raped by B. In the following case a statement made by A as a dying declaration would be of great evidentiary value for family members of A to institute a case against B. The difference between the principle of dying declaration in India and England is that in India dying declaration applies to both civil and criminal law whereas in England it applies only to cases of homicide. Thus, there is an added responsibility on the Indian courts to closely observe the declaration for its authenticity and further understand the pros and cons of the declaration to observe its impact on the victim’s case.
CORROBORATION OF DYING DECLARATION
The law with relation to corroboration of the declaration has been examined in various cases. This particular principle has evolved over the years. We will be observing the various case laws about corroboration:
In the case of Ram Nath v State of Madhya Pradesh,[iv]the court held that merely convicting the accused based on the dying declaration is against the principle of justice and good conscience. This is because as stated before in case of a declaration the court does to administer an oath on the person and neither is the person cross-questioned. Hence the court in this particular case held that merely having a declaration won’t make somebody liable. There should be some form of corroboration to this document. But in the case of Khushal Rao v State of Bombay,[v] the court held that in many cases if there is only a dying declaration it can be held as enough evidence to convict the person. The need for corroboration does not apply compulsorily to cases. Finally, in the case of U.P v Ram Sagar Yadav[vi], the court held that the primary purpose of the court is to find out whether the declaration is true. If the court concludes that the declaration is true then there is no need for corroboration of evidence. If the court’s confidence is not raised even after the declaration and the court isn’t clear regarding the circumstances and the declaration then the court may ask for certain evidence which may corroborate the declaration at hand.
CONDITIONS OF DYING DECLARATION
The person giving the declaration must die. Thus, we can establish that death is a must for recording of dying declaration. It has been held by the courts that this death need not be immediate but has to occur during the trial. In the case of Ram Prasad v State of Maharashtra,the court held that if the person survives his statement will not be recorded under section 32 of the Indian Evidence Act but will be recorded under section 164 of the criminal procedure code which talks about the recording of confession by a magistrate.
The victim when recording the declaration must be doing so voluntarily and there should be no external force used on him/her to make a declaration. Pre-requisites of a declaration include circumstances of the case, the crime committed etc. These must be defined by the victim under the declaration otherwise it becomes an unreliable document. The victim while making the declaration must be conscious and must be a coherent state of mind where he/she can understand the nature of what they are stating in the document.
METHODS OF RECORDING DYING DECLARATION
The law does not administer a particular way of recording a dying declaration. But in the declaration certain important points regarding the crime must be recorded. The points may revolve around:
- Where the instance occurred
- If at all a weapon was used, what weapon it was?
- The name of the accused or the appearance of the accused
This list is not exhaustive and merely indicates the points which will strengthen the case of the victim. There are various ways of recording a declaration:
- Written form
- Verbal form
- Gestures and sign form
The best way of recording a dying declaration is by the way of questions and answers. The main emphasis to be laid down by the court here is to closely observe the questions asked and the answers given. But if the victim is unable to understand the questions and narrates the incident the court will still accept it as a declaration. Sometimes a declaration is incomplete and the court must observe as to what aspect of the declaration is incomplete. If the main facts of the case such as the circumstances and the motive of the crime are missing the declaration itself becomes unreliable. But if some details which are not that important are left out the court may still rely on the document and hold up the importance of the dying declaration.
The next question which arises is why are then gestures accepted as dying declaration? The reason for this was recorded in the case of Queen Empress v Abdullah[vii]. In this case, the accused cut the throat of the girl. Thus, she couldn’t speak and stated the name of the accused by hand gestures. The Allahabad court held that in a case where the victim cannot speak, he/she can indicate the circumstances through hand gestures or nodding. The court while evaluating this evidence regarding gestures will observe regarding what gestures were made, what were the questions asked for the victim to make those gestures or nod. In fact, under the Nirbhaya case, the third dying declaration which was recorded by the magistrate was mostly hand gestures. The court relied on the above case while stating that this will be accepted as a dying declaration as gestures were indicative of the circumstances and the crime.
The main question that might arise in the minds of the readers must be of who can record a dying declaration? the answer to this question is pretty simple. Anybody can record a dying declaration. The recording is not limited to only a magistrate/ police officer or doctor. The only condition to be followed while recording the statement is whether the victim is in a mental condition to give the statement or not. It would also be beneficial if the person recording the declaration and the people who have seen the person record the declaration sign the document as witnesses.
EVIDENTIARY VALUE OF DYING DECLARATION
As stated above, the dying declaration is of great evidentiary value. The courts have held that once they observe the evidence on record and concur that this evidence is honest and has been taken without pressurising the victim, the evidence in itself is enough to convict the accused under the offence stated by the victim. The same was held in the case of K.R. Reddy v Public Prosecutor[viii]
In the case of Panneerselvam v State of Tamil Nadu, the courts held that a dying declaration need not be corroborated if the steps mentioned above are followed. The courts also held that the dying declaration should be treated like any other evidence in a court of law and differ from case to case. If a dying declaration is recorded by a magistrate in a question-answer format it will hold greater evidentiary value as compared to a declaration recorded in the form of oral evidence by a common person.
In the case of State of UP v Madan Mohan,[ix] the court held that the dying declaration must inspire the confidence of the courts. The magistrate should also note that there was no prompting or forcing the victim to give a declaration. The doctor must give a medical certificate to state that the victim was in a fit state of mind to give the dying declaration.
LENGTH OF DYING DECLARATION
Sometimes the value of a dying declaration is questioned due to its length. The courts have held that the shorter the dying declaration the better as it proves the exact happening of events thus helping in convicting the accused. In the case of Surajdeo Ojha v State of Bihar,[x] the court held that merely because a statement is brief it cannot be discarded, the brief nature of a declaration shows that it is the truth.
In State of UP v Madan Mohan,[xi] the court held that if the prosecution story is different as compared to the dying declaration then the declaration cannot be acted upon as it would alone not raise the confidence of the court.
EXCEPTIONS TO DYING DECLARATION
- If the victim of the crime in the dying declaration makes statements about various things but misses to point out the crime committed or the circumstances of the crime then the dying declaration though made cannot be relied upon.
- The accused should be in an able state of mind to give statements for a dying declaration. The courts have thus held that a child cannot give a dying declaration. In fact, in the case of Amar Singh v State of Madhya Pradesh,[xii] the court held without proof of mental or physical fitness the dying declaration would not be admissible.
- If somewhere the declaration is untrue the court has the power to omit that part of the dying declaration while accepting the rest of it.
- If the victim makes more than one declaration and all of them contradict each other in some way then the court can disregard all of them.
LORD LUSH, L.J., Quoted that, “A dying declaration is admitted in evidence because it is presumed that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips. But the person making the declaration must entertain a settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do.”
LORD EYRE, C.B., also held that “The principle on which this species of
evidence is admitted is, that they are made in extremity when the party is at
the point of death, and when every hope of the world is gone, when every motive
to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth. A situation so solemn and awful is
considered by the law as creating an obligation equal to that which is imposed
by the law as creating an obligation equal to that which is imposed by a
positive oath administered in the court of justice.” Thus, we can conclude by
saying that the dying declaration is one of the most important pieces of
evidence under the law and courts must be very careful while recording this
piece of evidence.
[i] Criminal Appeal No. 1018/2002
[ii] Section 32, clause (1), Evidence Act, 1872
[iii] Criminal Appeal No. 149/2000
[iv] AIR 1953 SC 420
[v] 1958 SCR 552
[vi] 1985 AIR 416
[vii] 1885 ILR 7 ALL 385
[viii] 1976 (3) SCC 618
[ix] AIR 1989 SC 1519
[x] 1980 Supp SCC 769
[xi] (1989) 3 SCC 390
[xii] 1996 Cr LJ (MP) 1582
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