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DECLARATION IN INDIA
CHAPTER 1 ………………………………………………………………………12
INTRODUCTION..................................................................................................... 12
1.4.2 Necessity.................................................................................................... 16
CHAPTER 2................................................................................................................ 20
CHAPTER 3................................................................................................................ 29
CHAPTER 4................................................................................................................ 34
CHAPTER 5................................................................................................................ 39
JUDICIAL TREND.................................................................................................... 39
Chapter 6…………………………………………………………………………….41
Table of Cases:
Abdul Gani v. Emperor AIR 1943 Cal. 465
Adbul Majid Abdul Rahman v. State of Gujarat 1976 SCC (Cr) 625
Amrik Singh v. State of Rajasthan (1994) 1 SCC 563
Bailiben v. State 1992 (1) GLH 577
Bakshis Singh v. State of Punjab AIR 1957 SC 904
Bharat v. State of Rajasthan 1981 CrLJ. 1274
Dalbir Singh v. State of Punjab AIR 1987 SC 1328
Danu Singh v. Emperor AIR 1925 All 227
Dayaramsingh v. State of Madhya Pradesh 1981 CrLJ 530 (MP)
Dileep Singh v. State of Punjab 1979 CrLJ. 700
Ghasi Ram v. State of Rajasthan 1985 Raj Cr C 359
Gopal Singh v. State of Bihar 1988 PLJR 396
Harbans Singh v. State of Punjab AIR 1962 SC 439
Hari alias Satya Pal v. State of UP 1983 All Cr R 283
Jaya Ram v. Sate of Tamil Nadu AIR 1978 SC 1519
K.R. Reddy v. Public Prosecutor 1976 SCC (Cr) 473
Kalua v. State 1985 (2) Crimes 432
Kans Raj v. State of Punjab AIR 2000 SC 2324
Kapur Singh v. Emperor AIR 1930 Lah 450
Khushal Rao v. State of Bombay AIR 1958 SC 22
Khushali v. State 1991 CrLJ. 3244 (All)
Kidd v. State 258 So2d 423, 429-30 (Miss 1972)
Krishnama Naiken v. Emperor AIR 1931 Mad 430
Kundabal Subramanyam v. State of Andhra Pradesh 1993 CRI LJ (SC) 1635
Kusa v. Sate of Orissa AIR 1980 SC 559
Lallubhai v. State of Gujarat AIR 1972 SC 1776
M.G. Bhagat v. State of Gujarat 1983 Cr. L.J. (Guj.) 303
Mafabhai N. Raval v. State of Gujarat 1992 SCC (Cr.) 810
Mahmood Ilahi v. State of UP 1990 CrLJ. 850
Majan Miyan v. State AIR 1970 Assam 121
Mangilal v. State of Madhya Pradesh 1993 Cr.LR (MP)
Mohan Lal v. State of Maharashtra AIR 1982 SC 839
Munnu Roja v. State of MP AIR 1976 SC 2199
Najjam Faruqui v. State of West Bengal AIR 1998 SC 682
Narain Singh v. State of Haryana AIR 2004 SC 1616
Nga Ba Mim v. Emperor 1935 Rangoon 418
Paniben v. State of Gujarat 1992 SCC (Cr.) 403
Patel Hiralal Joita Ram v. State of Gujarat AIR 2005 SC 2944
Purna Chandra Singh v. State of Orissa 1985 CrLJ 248
R v. Reason and Tranter 1 Stra. 1 East, P. C. 353
Radhey Shyam v. State of Uttar Pradesh 1994 All LJ 69
Rajpal v. State (1984) 1 Crimes 821 (Delhi)
Ram Bihari Yadav v. State of Bihar AIR 1988 SC 1850
Ram Das Gajanan Patil v. State of Maharashtra 1979 Cr.LR (Mah) 400
Ram Dayal v. State 1988 RCC 138 (Raj) (DB)
Regina v. Osman (1881) I 5 Cox I
Ronal Kiprono Ramkat v. State of Haryana AIR 2001 SC 2488
Satya Narain v. State (1978) 15 ACC 17
Sharad Birdichand Sarda v. State of Maharashtra AIR 1984 SC 1622
Sher Singh v. State of Rajasthan AIR 2008 SC 1426
State of Assam v. Mahim Barakataki AIR 1987 SC 98
State of HP v. Hem Raj 1992 SLC 158 P 169 (HP)
State of Kerala v. Rajayyan (1995) 11 CCR 187 (DB)
State of MP v. Baital Singh 1987 CrLJ. (MP) 100
State of Orissa v. Sudam Ch. Mohanty 1990 (2) Crimes 186
State of Punjab v. Savitri Devi 1983 CrLJ. 1093
State of Rajasthan v. Kishore AIR 1996 SC 3035
State of UP v. Ram Sagar Yadav, AIR 1985 SC 416
State of UP v. Ramesh Prasad Misra AIR 1996 SC 2766
State v. Kanchan AIR 1954 All 153
State v. Moody 3 N.C. (2 HAYW.) 50 (1798)
Sulaiman v. King AIR 1941 Rang 301
Tapinder Singh v. State of Punjab AIR 1970 SC 1566
The King v. Woodcock (1789) 168 ENG. REP. 352 (P.C.)
Viramji Mohatji Thakore v. State of Gujarat 2005 (2) GLR 1622
Wali Mohammad v. Emperor AIR 1930 Oudh 2499
CHAPTER 1
INTRODUCTION
Dying Declarations are the statements made by a dying person as to injuries, which culminated
in his death or the circumstances under which the injuries were inflicted. Statements made by a
deceased long prior to the occurrence resulting in death are not Dying Declaration and not
admissible in Indian Evidence Act. The general ground of admissibility of the evidence is that no
better evidence is to be had.
Dying declaration is based on the maxim “Nemo moriturus praesumitur mentire”which means ‘a
man will not meet his maker with a lie in his mouth’. It operates as an exception to the hearsay
rule. Hearsay evidence is excluded because it is considered not sufficiently trustworthy. It is
rejected because it lacks the sanction of the tests applied to admissible evidence i.e. the oath and
cross-examination. They are not given any importance in the courts because the person who is
giving this evidence is not telling his experiences but that of another person and who cannot be
cross examined to verify the facts. It is an exception because if this evidence is not considered
the very purpose of the justice will be forfeited in certain situations when there may not be any
other witness to the crime except the person who has since died.
A Dying Declaration as envisaged by Section 32 of the Indian Evidence Act, 1872 need not
necessarily be from a person who is dying at the time of making the statement. In addition, at the
time of making such declaration, it is necessary that he or she should know that there is
impending death. In other words, at the time of making such declaration it is a legal mandate that
such person must entertain expectation of death.
A dying declaration is considered credible and trustworthy evidence based upon the general
belief that most people who know that they are about to die do not lie. As a result, it is an
exception to the Hearsay Rule, which 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. If the person who made the dying declaration had the slightest hope of
recovery, no matter how unreasonable, the statement is not admissible into evidence. A person
who makes a dying declaration must, however, be competent at the time he or she makes a
statement, otherwise, it is inadmissible.
The dying declaration exception appears in some very early American case law. For instance,
in State v. Moody[6], a North Carolina case from 1798, the court explained that dying declarations
may be received “of one so near his end that no hope of life remains, for then the solemnity of
the occasion is a good security for his speaking the truth, as much so as if he were under the
obligation of an oath.”[7] The North Carolina court warned, however, “if at the time of making
the declaration he has reasonable prospects and hope of life, such declarations ought not to be
received; for there is room to apprehend he may be actuated by motives of revenge and an
irritated mind, to declare what possibly may not be true.”[8]
In English Law, the conditions for admissibility of dying declarations are- Firstly, that the
declarant should have been in actual danger of death at the time when they were made; secondly,
that he should have had a full apprehension of his danger; and thirdly, that death should have
ensued. Whereas, under the Indian law the dying declaration is admissible, whether the person
who made it was or was not under expectation of death, which, of course, makes a lot of
difference.
In Indian Law, the question of nature and scope of dying declaration; has made a distinct
departure from English Law, where only the statements, which directly relate to the cause of
death, are admissible. The framers of the Indian Evidence Act, 1872, in view of the peculiar
conditions of our people society and the diverse nature and character of our people, thought it
necessary to widen the sphere of Section 32 to avoid injustice. A provision similar to the second
part of Cl. (1) of Section 32, viz. “the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person’s death comes into question”[9], is not to be
found in the English Law.
As distinguished from the English Law Section 32 does not require that such a statement should
have been made in expectation of death. Statement of the victim who is dead is admissible in so
far as it refers to cause of his death or as to any circumstances of the transaction, which resulted
in his death. The words “as to any of the circumstances of the transaction which resulted in his
death” appearing in Section 32 must have some proximate relation to the actual occurrence. In
other words the statement of the deceased relating to the cause of death or the circumstances of
the transaction, which resulted in his death, must be sufficiently or closely connected with the
actual transaction.
Due weight is required to be given to a dying declaration keeping in view the legal maxim
“Nemo moriturus praesumitur mentire” i.e. ‘a man will not meet his Maker with a lie in his
mouth’. To make such statement as substantive evidence, the person or the agency relying upon
it is under a legal obligation to prove the making of a statement as a fact. If it is in writing, the
scribe must be produced in the Court and if it is verbal, it should be proved by examining the
person who heard the deceased making the statement. However, in cases where the original
recorded dying declaration is proved to have been lost and not available, the prosecution is
entitled to give secondary evidence thereof.
1.4.2 Necessity
The victim being generally the only eyewitness to the crime, the exclusion of his statement
would tend to defeat the ends of justice. A dying declaration is admissible in evidence on the
principle of necessity and can form the basis of conviction if it is found to be reliable. While it is
in the nature of an exception to the general rule of forbidding hearsay evidence, it is admitted on
the premises that ordinarily a dying person will not falsely implicate an innocent person in the
commission of a serious crime. If, in the facts and circumstances of the case, it is found that the
maker of the statement was in a fit state of mind and had voluntarily made the statement on the
basis of personal knowledge without being influenced by others and the court on strict scrutiny
finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of
evidence cannot be acted upon unless it is corroborated.
The main focus of the study is to undertake the evaluation of judgment and interpretation of
Dying Declaration. Therefore this research work is intended to make an extensive and analytical
study of Dying Declaration.
Keeping in view the need of present research, various cases filed in the Supreme Court as well as
in the High Courts on the issue of and the judgments therein have also been used as a source of
information. The judgments pronounced in the cases have been analyzed in detail and used as a
means of diagnosis to know the basic lacunae arising in the way of providing the remedy.
In this research project the topic has been divided into few different chapters. This research
project deals with Dying Declaration as given under the Indian Evidence Act. In the first chapter
the historical perspective along with English and Indian law relating to the same has been
discussed in depth. The reasons for the acceptance of this principle has also been dealt with in
the first chapter itself.
In the second chapter of this research the conditions essential for the principle of Dying
Declaration has been discussed and explained in depth and detail. The manner in which the dying
declaration can be taken or accepted by the court is also dealt with in this chapter.
In the third chapter of the study the Evidentiary value of the dying declaration with instances
where it has been accepted or rejected by the courts in the various cases has been given and
explained as well as discussed. Can dying declaration become the sole reason for conviction or
not is also discussed in this chapter. The effect of discrepancies in the dying declaration or
multiple dying declaration and its effect on the case and the evidentiary value has been discussed
in the chapter 4 of the study. Finally in chapter 5 the Judicial Trend of the the Principle of Dying
Declaration as played or has been accepted or rejected in the courts in the various cases has been
discussed along with the case facts and decisions.
Chapter 6 is the final chapter of the study discusses the conclusion and suggestions regarding the
research topic is done. This is how the whole research project has been divided into the chapters
and discussed every element in detail as to the Law Pertaining to Dying Declaration in India.
CHAPTER 2
Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though
such an exception has not been used in any statute. It means statements made by a person as to
cause of his death as to the circumstances of the transaction resulting in his death. The grounds
of admission are: (1) necessity for the victim being generally the only principal eyewitness to the
crime, the exclusion of the statement might defect the ends of justice (2) the sense of impending
death, which creates a sanction equal to the obligation of an oath. It is admitted is that they are
declarations made in extremity, when the party is at point of death and when every hope of his
words 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 so lawful is considered by
the law as creating an obligation equal to that which is imposed by a positive oath administered
in the court of justice.
The Hon’ble Supreme Court in Lallubhai v. State of Gujarat[12] held that the law regarding
Dying Declaration is very clear. A Dying Declaration must be Closely scrutinized as to its
truthfulness like any other important piece of evidence in the light of the surrounding facts and
circumstances of the case bearing in mind on the one hand, that the surrounding is by person who
has not been examined in court on oath and on other hand the Dying man is normally not likely
to implicate innocent persons falsely.
It is said that truth sits on the lips of a person who is about to die. The Supreme Court
inKundabal Subramanyam v. State of Andhra Pradesh[13], “A Dying Declaration is made by a
person on the verge of its death has a special sanctity as at that solemn moment a person is most
unlikely to make an untrue statement. The shadow of the impending death is by itself the
guarantee of the true of the statement made by the deceased regarding the cause or circumstances
leading to his death”[14].
The term dying declaration has not been defined in Indian Evidence Act, 1872, but reading
Section 32(1), the term dying declaration, may be defined as follows:
“A dying declaration is statement made by a person who is dead; as to cause of his death or as to
circumstances of transaction which resulted in his death, in cases in which his death comes into
question, such statements are relevant under Section 32 of Evidence Act, whether the person who
made there was or was not, at the time when they were made, under expectation of death and
whatever maybe the nature of proceeding in which the cause of his death comes into
question.”[15]
The Supreme Court in State of UP v. Ramesh Prasad Misra[16] has held that Section 32(1) is to
be construed in a wide manner and includes a statement by the deceased regarding motive behind
the criminal act.
In Patel Hiralal Joita Ram v. State of Gujarat[22], it was held by Supreme Court that the words
“Statement as to any circumstances” are by themselves capable of expanding the width of scope
of admissibility. Any thing, which has nexus with, his death proximate or remote, direct or
indirect can also fall within the purview of sub-section.
In Kans Raj v. State of Punjab[23], the Supreme Court held that the words “as to any
circumstances of transaction which resulted into his death”, appearing in Section 32 makes it
clear that the circumstances resulting in death must have proximate relation to actual occurrence.
Circumstances must have some proximate relation to the actual occurrence and must be of the
transaction which resulted in death of the declarant, though as for instance in case of prolonged
poisoning they may be related to dates at a considerable distance from the date of the actual fatal
date.
In Najjam Faruqui v. State of West Bengal[26], the Supreme court held that such statements are
relevant whether the person who made the statement was or was not at the time, when the
statement was made, under expectation of death and whatever be the nature of proceeding in
which the cause of his death comes into question.
On the question of mental fitness in Mafabhai N. Raval v. State of Gujarat[28], it was held by the
Apex court that unless there is something inherently defective, the court cannot substitute its
opinion for that of the doctor. Normally the court, in order to satisfy whether the deceased was in
a fit mental condition to make the dying declaration, look up to the medical opinion. But where
the eye-witness has said that the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail.[29]Where two doctors and the Magistrate were
certifying that the patient was conscious and in fit state of mind, then no doubt should be cast
over the capacity to make the statement.[30]
The dying declaration becomes doubtful when the doctor, who attended the victim, alleged that
the victim told him who were the assailants but another doctor stated that, in view of the nature
of injuries, the victim would have become unconscious immediately.[31] The dying declaration
also becomes doubtful in the absence of any other independent direct testimony when according
to medical evidence the deceased’s injuries were very likely to have resulted in his immediate
death.[32]
In order to determine as to whether the dying declaration was truthful, Supreme Court had laid
down certain tests in Khushal Rao v. State of Bombay.[36] They are (1) declaration to a Magistrate
is preferable to an oral declaration, (2) opportunity of dying man of observation, (3) capacity to
remember remained unimpaired, (4) a consistent statement, (5) an early statement and (6) no
tutoring.
It is not necessary that the dying declaration should be in the question and answer form. The
declaration should be taken down in the person making it. It should be ipissima verba of the
person making it. On the other hand it may be open to objection if leading questions were put to
the declarant for the purpose of eliciting information. It is for the court to decide the
circumstances of each case whether the statement recorded was free, voluntary, clear and
unambiguous statement of the deceased at the time when he is capable of making that statement.
CHAPTER 3
It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is
that the courts must exercise due care and caution to ensure genuineness of the dying declaration,
keeping in mind that the accused had no opportunity to test the veracity of the statement of the
deceased by cross-examination. As rightly observed by the Courts, the law does not insist upon
the corroboration of dying declaration before it can be accepted. The insistence of corroboration
to a dying declaration is only a rule of prudence.
When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or
animosity, and is not a product of the imagination of the declarant, in that event, there is no
impediment in convicting the accused on the basis of such dying declaration. When there are
multiple dying declarations, each dying declaration has to be separately assessed and evaluated
and assess independently on its own merit as to its evidentiary value and one cannot be rejected
because of certain variation in the other.
Though in law there is no bar in acting on the part of Dying Declaration, it has to pass the test of
reliability. Section 32 is an exception to the hearsay rule and unless evidence is tested by cross-
examination it is not credit worthy. A Dying Declaration made by a person on the verge of his
death has a special sanctity, as at that solemn moment by a person is most unlikely to make any
untrue statement. The shadow of impending death is by itself guarantee of the truth of the
statement of the deceased regarding circumstances leading to his death. But at the same time the
dying declaration like any other evidence has to be tested on the touchstone of creditability to be
acceptable. It is more, so, as the accused does not get an opportunity of questioning veracity of
the statement by cross-examination. The dying declaration if found reliable can form the base of
conviction.[45]
Once the statement of Dying person and the evidence of the witnesses testifying the same passes
the test of careful scrutiny of the courts, it becomes very important and reliable piece of evidence
and if the court is satisfied that the dying declaration is true and free from any embellishment
such a Dying Declaration by itself can be sufficient for recording conviction even without
looking for conviction.[46]
In State of Punjab v. Savitri Devi[52], the Full bench of the Punjab and Haryana High Court
observed: “The dying declaration is undoubtedly admissible under Section 32 of the Indian
Evidence Act, 1872, and not being a statement on oath so that its truth could be tested by cross-
examination, the courts have to apply the strictest scrutiny of the closet circumspection of the
statement before acting upon it.”[53]
In State of Rajasthan v. Kishore[56], the court held that the Dying Declaration if found to be true
and free from any effort to induce the deceased to make a false statement and if it is coherent and
consistent, there is no legal impediment to form such Dying Declaration as basis of conviction
even though there is corroboration. Thus the primary duty of the court of the court is to find out
whether the Dying Declaration is true. If it is, no question of corroboration arises. It is only if the
circumstances surrounding the Dying Declaration are not clear or convincing, the court may, for
its assurance, look for corroboration.[57]
If the document is thus put on record it does not become, in the strict sense, substantive evidence
but it forms part of the testimony of the witness who recorded it. If the statement to be proved is
a written statement made by a person who is dead, then it must be proved that such statement
was so made by the person who is dead. In that case, of course, the written statement itself
becomes substantive evidence.[64]
Where the dying declaration has been recorded in writing by the magistrate and had been read
over to the deceased, there can be no doubt that whatever is mentioned therein is the faithful
statement of the deceased himself. But even then, proof of the identity of the person who made
the statement is necessary.[65]
CHAPTER 4
A dying declaration is not to be believed merely because no possible reason can be given for
accusing the accused falsely. It can only be believed, if there are no grounds for doubting it at all.
It is not always safe to convict an accused person merely on the evidence furnished by a dying
declaration, without further corroboration, because such a statement is not made on oath and is
not subject to cross-examination, and because the maker of it might be mentally and physically
in a state of confusion and might well be drawing upon his imagination while he was making the
declaration.
When one party is killed by another, there are often no witnesses to the murder other than the
killer and the victim who is now absent. In some circumstances, the victim has enough life left to
utter some final words to an individual who happens to be in the vicinity of the crime. Usually
these statements, known in legal terms as dying declarations, relate to the circumstances of the
victim's death, including the identity of the perpetrator. If the crime is investigated by law
enforcement authorities, the final words of the victim can be reported by the individual who
received this last utterance. If the matter goes to trial, this report may be heard in a courtroom by
judge and jury who will decide the fate of the accused, which may include loss of liberty or even
death.
The presentation of the victim’s words in court is a dramatic example of what in linguistics is
referred to as “reported speech.” In the case of a criminal trial, this instance of reported speech is
considered by the court as “direct” (i.e., a faithful and literal repetition of the victim’s utterance)
rather than “indirect,” where there is some paraphrasing of the victim’s words.[66]
When one reports the speech of another for the truth of the matter asserted, such as when the
recipient of a dying declaration reports it in order to prove the identity of the assailant, that report
is treated as hearsay. Hearsay is defined as a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. These statements are generally considered to be untrustworthy and highly prejudicial to
the accused since the actual speaker of the words is not subject to cross-examination.[67]
The case of dying declaration hearsay, however, constitutes an exception: that is, the recipient’s
report of the victim’s statements is considered to possess the guarantees of trustworthiness
ascribed to direct testimony; albeit hearsay, it is admissible into court for the truth of the matter
asserted therein. Thus, this legal regime presumes that the declarant’s statement is reliable, that
the reporter of the statement transmits this information completely and accurately, and that the
court assesses this information objectively.
As early as the 12th century, dying declarations such as deathbed statements were already “long
understood” by western observers such as Wigmore to be somehow imbued with a “special
trust.”[68] Dying declaration hearsay did not assume its current status in British courts as an
exception to the hearsay rule until early in the 18th century. Typical of the “reasoning” which
lifted the dying declaration above the bar of general hearsay exclusion was the presumption
expressed by the well-worn legal maxim, “No person, who is immediately going into the
presence of his Maker, will do so with a lie upon his lips.”[69] But there are some prima facie
objections to the above rule. Even assuming that statements made by the author of the dying
declaration to the recipient reporter, a transfer of those words from the reporter to the court, and
receipt and assessment of the words by the court are accurate as well as value-free, the rule's
rationale is readily criticized on its face.
Further, the party who hears the dying declaration may misunderstand or miscomprehend the
statement due to the stress of the situation or by simple mistake, since “honest mistakes, to say
nothing of passion, prejudice or self-interest might give us a distorted or false statement as to
what the dying declaration was.”[71] Finally, the listener in this circumstance is unlikely to
attempt to seek clarification or qualification of the dying declarant's statements after he or she
has uttered the declaration.[72]
JUDICIAL TREND
Time and again the courts in India, be it Supreme Court or High courts, have come up to serve
and explain the ambiguities, if any, in order to comprehend the intent of the legislature, while
laying down the law under Section 32 of the Indian Evidence Act, 1872.
In Ronal Kiprono Ramkat v. State of Haryana[77], the Deceased was raped by appellant and then
stabbed with kitchen knife on neck and head. The Injuries inflicted by appellant resulted in death
of deceased. Therefore, the appellant was charged for offence under Sections 302 and 376,
Indian Penal Code, 1860. The Trial Court convicted appellant for offences under Sections 302
and 376/511, Indian Penal Code, 1860. The Hon’ble Supreme Court observed that there were no
eyewitnesses to incident and the prosecution mainly relied on oral dying declaration and that the
dying declaration suffered from a number of infirmities and absence of explanation of serious
nature of injuries sustained by appellant raises serious doubt as to very genesis of incident. Fact
that deceased was totally naked probablises theory of intercourse by consent and negatives
theory of rape. The Court concluded that in view of seriousness of injuries sustained by appellant
it couldn’t be said that injuries were self-inflicted. Also dying declaration does not appear to be
in language of deceased and therefore does not inspire confidence. The Hon’ble Supreme Court
held that in view of infirmities, improbabilities and contradictions dying declaration cannot be
relied upon and therefore, the appeal was allowed and the appellant was acquitted.
But absence of motive in dying declaration is not always fatal to its admissibility. In case of
direct evidence question of motive has little importance.[79] Similarly, where the specific role is
assigned to the named culprits, merely absence of motive in the dying declaration is not
sufficient to assail the conviction based on such dying declaration, particularly where there is
nothing on record to show that the deceased has any motive to falsely implicate the accused.[80]
But where the testimony as to the alleged cruelty is based on the statement of the deceased
uttered many months prior to her death, held such statement of the deceased does not fall within
the provisions of Section 32(1) of the Indian Evidence Act, 1872 and the same is not admissible
in evidence. The expression ‘soon before her death’ used in the substantive part of Section
304B[82], Indian Penal Code, 1860 and Section 113B[83], Indian evidence Act, 1872 is clubbed
with the idea of proximity test. Ne definite period has been indicated and the expression ‘soon
before’ is not defined. A reference to Section 114[84], Indian Evidence Act, 1872 (illustration) is
relevant. It lays down that a court may presume that a man who is in possession of stolen goods
‘soon after’ the theft is either the thief or has received the goods knowing them to be stolen,
unless he can account for his possession.
To raise the presumption of dowry death, the prosecution must prove that soon before her death
the woman had been subjected to cruelty or harassment in connection with any demand of
dowry.[85]
A dying declaration containing a few words would not warrant its rejection on that ground. A
dying person with fatal injuries must be in severe agony. The groaning utterances of a dying
person in grip of dreadful agony cannot be judged by the fullness of the particulars.[87]In Dalbir
Singh v. State of Punjab[88], their Lordships of the Supreme Court observed:
“In any event the dying declaration in our opinion, could not be discarded, merely on the ground
that it does not give precise description of all the instruments of offence and also the precise
description of the manner in which the injuries were inflicted and on the basis, therefore, it could
not be contended that this dying declaration should be rejected as it is not consistent with the
medical evidence when substantially it is corroborated by medical evidence and also
corroborated by the testimony of eye-witnesses.”
Undoubtedly, it is essential to show before admitting the dying declaration that the dying
declaration was made when the make was in a position of his faculties to enable him to make
such dying declaration, that he should be free from any prompting or external influence.
CHAPTER 6
Hearsay evidences are not given any weightage in the courts because the person who is giving
this evidence is not telling his experiences but that of another person and who cannot be cross
examined to verify the facts. Dying declaration is an exception to this rule because if this
evidence is not considered very purpose of the justice will be forfeited in certain situations when
there may not be any other witness to the crime except the person who has since died. Sometimes
it the best evidence in such situations. Such statements are relevant whether the person who
made this was expecting death or not.
As a piece of evidence, dying declaration is now fairly crystal clear by judicial decisions. The
importance of dying declaration as a piece of convincing evidence is increasing with the
escalation of cases, wherein the Dying declaration laid the foundations for prosecution.
Notwithstanding that there may be no direct and ocular evidence to prove a crime, a dying
declaration may be self-speaking and prove much more than eye-witnesses could depose. Truly
said, men may lie but not the circumstances. It is as good as any other piece of evidence and it is
sacrosanct.
The evidence with regard to a dying declaration must be very carefully and critically scrutinized,
as the accused has no opportunity to challenge such statement by way of cross-examination.
Great sanctity is attached to the words of a dying man because a person on the verge of death is
not likely to tell lies, but the court must be satisfied that the deceased was in a fit state of mind to
make the statement. The evidence furnished by the dying declaration must be considered by the
court just as the evidence of any other witness, though undoubtedly some special considerations
arise in the assessment of dying declaration, which do not arise in assessing the value of
statement made in court by a person claiming to be a witness of the occurrence.
A dying declaration can be accepted only if the court feels certain that the witness before the
court has given the evidence is thoroughly reliable and that there is no infirmity in his evidence.
The court must be circumspect and cautious in evaluating the worth of such statements. It has to
be established beyond any reasonable doubt that the maker of the dying declaration had the
opportunity to identify the assailants. The truthfulness, reliability and the acceptability of the
dying declaration has to be adjudged in the light of the attendant facts and circumstances of each
case and it has to be subjected to strict scrutiny like any other piece of evidence, either direct or
circumstantial.
It is the duty of the person recording a dying declaration to take every possible question to ensure
the making of a free and spontaneous statement by the declarant without any prompting,
suggestion or aid from any other justice. The Judicial Magistrate, medical officer and police
officials must all realize that the welfare of the injured person should be their first consideration,
and in no circumstances must be proper medical treatment be impeded or delayed simply to
obtain the dying declaration of the injured person.
It has been accepted, that there is a tendency among persons dying to implicate all their enemies
who may have had nothing to do with the offence. The courts in India have, therefore, accepted
that one must be very careful in relying on dying declarations. But besides such a precaution,
there are a lot of other safeguards to make sure that dying declaration recorded is credible
enough and is not cast by any shadow of doubt.
In order to bring dying declaration to a higher footing as it is now, the provision for compulsory
audio and video recording of the dying declarations should be introduced and made mandatory.
This would provide more credibility to the dying declaration and confusion as to the name of the
accused or any other particulars, which are missed due to the fact that the declarant uses symbols
or gestures to put forward the declaration, would be easily catered to.
Ordinarily, a dying declaration is entitled to much weight, considering the situation that it was
like a message from the grave. The possibility of imminent danger gives sanctity to the whole
matter. At the same time, however, the courts should not take it as a rule of universal application
that death is the surest rectifier. Human Psychology in spite of some modem advancement
remains buy and large an uncharted region and fathomless sea. The shocks and responses of the
different persons vary according to the mental frameworks of the persons concerned. If
circumstances are placed, which tend to show that the dying declaration would not be true, then
the court also should not confidently rely on the dying declaration.
BIBLIOGRAPHY
Books
1. Brewer, Scott, Logic, Probability, and Presumptions in Legal Reasoning, Routledge, London, 2011.
2. Gupta, Dr. H.R., Desai’s Law Relating to Confession and Dying Declaration, Dwivedi Law Agency,
Allahabad, 2006.
3. Lal, Batuk, The Law of Evidence, Central Law Agency, Allahabad, 2012.
4. Rao, S.V. Joga, Sir John Woodroffe & Syed Amir Ali’s Law of Evidence, Buttersworth India, New Delhi,
2002.
5. Sarkar, S.C., Sarkar’s Commentary on the law of Evidence, Dwivedi Law Agency, Allahabad, 2007.
6. Sharma, Anil Kumar, S.K. Shanglo’s Law of Dying Declaration, The Law Book Co. (P) Ltd., Allahabad, 1996.
7. Stephen, Sir James Fitzjames, A History of Criminal Law of England, Macmillan and Company, London,
1883.
8. Tripath, A.K., Supreme Court on Law of Evidence, Vaibhav Law Publications, Allahabad, 2007.
9. Wigmore, John Henry, Evidence In Trials At Common Law, Little brown and Company, New York, 1974.
Journals
1. Liang, B. A., Lies on the Lips: Dying Declarations, Western Legal Bias, and Unreliability as Reported Speech,
Law Text Culture 5(2) (2000).
2. Orenstein, Aviva, Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence, University
of Illinois Law Review (2010).
Statutes