A dying declaration is a statement made by a dying person as to the cause of
his death or as to any circumstances of the transaction that resulted in his
death. The dying declaration forms the sole basis of conviction if it is free
from any kind of doubt and if it has been recorded in the manner as provided
under the law. It should inspire full confidence in its truthfulness and
correctness. Not recording of dying declaration will result in miscarriage of
justice because the victim being generally the only eye-witness in a serious
crime, the exclusion of the statement would leave the court without a scrap of
evidence. It is for the court to see that dying declaration inspires full
confidence as the maker of the dying declaration is not available for cross
A dying declaration is "a statement, written or verbal made by a person as to
the cause of his or her death or as to the circumstances of the transaction
resulting in his or her death". It is based on the principle that dying
declarations are made in the extremity when the party is at the point of death,
and every hope of this world has 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 awful is considered by the law as
creating an obligation equal to that which is imposed by a positive oath
administered in a court of justice.
Aim Of The Study
- To study the concept of dying declaration
- To analyze section 32 of the Indian Evidence act
- To look into flexibility of the process of recording dying declaration
- To study the disadvantages of the recording of dying declaration
The researcher has adopted doctrinal method of research and the entire paper is
in the form of analysis of the established procedures, thereby following
analytical mode of research. The primary sources for this research paper are the
Indian Evidence Act and relevant judicial decisions. Secondary sources include
books, articles and web sources.
Background And Scope
Dying declaration is bases on the maxim "Nemo moriturus pra esumitur mentire"
i.e. a man will not meet his maker with a lie in his mouth. 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. Its admissibility is explained in the section 32
(1) of Indian Evidence Act. According to this section when the statement is made
by a person as to the cause of his death, or 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 this was expecting death or not.
In English law he must be under
expectation of death only then this declaration is valid. This declaration is
valid both in civil and criminal cases whenever the cause of death comes into
question. If we read the various judgments on the admissibility of dying
declaration at times various judges have taken diagonally opposite views and
different explanations have been offered though the motive in all have been to
provide justice to the people. Main thing is that if these declarations seem
trustworthy to courts these retain their full values.
Most important point of
consideration is that victim was in a fit condition of mind to give
International Journal of Pure and Applied Mathematics Special Issue 1064 the
statement when recording was started and remained in fit condition of mind till
the recording of the statement finished. Merely stating that patient was fit
will not serve the purpose.
This can be best certified by the doctor who knows
best about the condition of the patient. But even in conditions where it was not
possible to take fitness from the doctor, dying declarations have retained their
full sanctity if there are other witnesses to testify that victim was in such a
condition of the mind which did not prevent him from making statement. Medical
opinion cannot wipe out the direct testimony of the eyewitness stating that the
deceased was in fit and conscious state to make the dying declaration.
most important point to be considered is that it should not be under the
influence of anybody or prepared by prompting, tutoring or imagination. Even if
any one of these points is proved then dying declaration is not considered
valid. If it becomes suspicious then it will need corroboration. If a person has
made more than one dying declarations and if these are not at variance with each
other in essence they retain their full value. If these declarations are
contradictory than these lose value.
Best form of dying declaration is in the
form of questions and answers. If it is in the form of narrations it is still
good because nothing is being prompted and everything is coming as such from the
mind of the person making it. If a person is not capable of speaking or writing
he can make a gesture in the form of yes or no by nodding and even such type of
declaration is valid. Whenever this is being recorded in the form of questions
and answers precaution should be taken that exactly what questions are asked and
what answers are given by the patient those should be written.
It is preferred
that it should be written in the vernacular which the patient understands and speaks.It is best that it is recorded by the magistrate but if there is no time
to call the magistrate due to the deteriorating condition of the victim it can
be recorded by anybody e.g. public servant like doctor or any other person.
Courts discourage the recording of dying declaration by the police officers but
if there is nobody else to record it dying declarations written by the police
officers are also considered by the courts.
If these are not recorded by the
magistrate it is better that signatures of the witnesses are taken who are
present at the time of recording it. In burn cases usually it is debated the
person is not capable of making dying declaration due to the effect of burns or
due to the narcotic sedation given to treat burns. International Journal of Pure
and Applied Mathematics Special Issue 1065 But Gupta and Jani have opined that
neither effect due to burns nor the drugs used to treat burns victims
conventionally affects the higher functions. Therefore they safely concluded
that compos mentis is not affected either by burns or by its treatment.
If the person making it is imbecile or is of tender age and was incompetent
to testify due to this reason, that dying declaration would not be valid As
a measure of safety original dying declaration should be sent to the court
like FIR and its Photostat should be kept in the case file.
It does not matter that the person has put a thumb impression or signed it
if this is duly witnessed. But in the court question does arise if a person
who can sign puts a thumb impression. If a literate person putting the thumb
impression is in such a condition that he cannot sign e.g. he was lying in
the bed and could not get up to sign it or it was inconvenient for him to
put thumb impression due to his condition (intravenous drip on the back of
hand) or injury e.g. injury on the right hand in a right handed person. In
the absence of such conditions if there is thumb impression and this is not
witnessed by disinterested persons a doubt may be created whether this was
done after the person died to take revenge by some interested person.
There is usually no time limit that dying declaration becomes invalid if the
person died after many months after making the declaration. Cases are on
record when it was considered valid after 4 months. Even the HISTORY given
by the injured recorded by the doctor in the case file has been considered
as dying declaration by the honorable Court if it is mentioned that the
patient told in the history that incident occurred in such and such manner
which was responsible for the death of the victim.
Hence it is important that if such
history is written as narrated by the victim it should be recorded carefully,
keeping in mind the mentioned finding of the court. First information report got
recorded by the police has been taken as dying declaration by the honorable
Supreme Court, when the person did not survive to get his dying declaration
recorded. But when patient remained admitted in hospital for sufficient days
i.e. for 8 days FIR cannot be treated as dying declaration. A suicide note
written found in the clothes of the deceased it is in the nature of dying
declaration and is admissible in evidence under section 32 of Indian Evidence
Act International Journal of Pure and Applied Mathematics Special Issue 1066
Recording of Dying Declaration
Indian law doesn't provide any prescribed manner, format or procedure for
recording dying declaration. But ideally it is recorded in local dialect in
narrative form. It gives less chance of asking leading questions and nothing is
being prompted. In question and answer forms, most of the points will be missed
and the declarant concentrates only on the questions which he was asked.
Calcutta High Court has ruled that where a dying person is unable to speak
and can make only signs to the questions put to him, such questions and
signs put together might be regarded as verbal statement
made by a person as to the
cause of his death within the meaning of S 32 of Indian Evidence Act, and are
therefore admissible in evidence. The accuracy of such verbal statement and the
investigating officer having influence on declarant, recording such verbal
statement remains questionable.Who Can Record Dying Declaration? The law does
not provide direction on who can record a dying declaration.
The Supreme Court
Bench of justices B S Chauhan and Dipak Misra while reversing an acquittal in a
dowry death case ordered by Madhya Pradesh High Court said that any member of
the public can record the statement of a dying declaration, but he should make
sure that the one making the statement should be conscious and his mental status
are normal. But ideally, magistrate should record the statement in all cases and
if not possible at least in allegation cases, so that exact cause of death from
the declarant can be elicited on the spot and long waiting trails can be
It cannot be said that a statement recorded by a police officer is
always invalid. The practice of investigating police officer himself recording a
dying declaration during the course of investigation is ideally not to be
encouraged as he may influence on the declarant statement. Dying declaration
should be recorded in the presence of independent witnesses by recording the
date and time of starting and ending of statement. Declarant should not be under
the influence of anybody nor prepared by prompting, tutoring or imagination.
Even if any one of these points is proved then dying declaration is not
considered valid. Court has held that, if an investigating officer records dying
declaration not in local dialect to which the deceased belonged makes the dying
declaration suspicious. But the court did not mention anything on the validity
of the recorded declaration where declarant is illiterate and investigating
officer not understanding the local language of declarant.
International Journal of Pure and Applied Mathematics Special Issue 1067 after
being recorded should be read over to the declarant, who should affix his or her
signature/ thumb impression to it and if not, then should mention the reason for
not taking it in the end of the statement. If the declarant writes his statement
himself, the statement should be signed and attested by both the witness and
investigating officer. If the declarant becomes unconscious while the statement
being recorded, person who is writing it must elicit as much as information and
sign it. When concluded, it should be signed by the person who is recording
along with date and time of recording it, and also obtain the signature of the
independent witness who can corroborate the content of the document. Such
declaration will be truthful and reliable.
If a victim loses consciousness in
the middle of recording statement, the evidentiary value of such incomplete
declaration is again questionable. Law does not provide any information on this
issue. After recording statement its confidentiality is maintained.It should be
sealed in a proper envelope with a seal and sent to the concerned authorities
and a photocopy should be kept in case file, but are usually not followed in
routine. If a declarant has made more than one dying declarations and if these
are not at variance with each other in essence, they retain their full value.If
these declarations are inconsistent, such dying declaration loses their value.
Some relevant case laws:
- The deceased must be in a fit state of mind and capable of making a statement at the time of recording of dying declaration.
- Prior to recording of statement of deceased, the doctor shall do a thorough and professional assessment of physical and mental condition of the patient.
- Dying declaration is not mandatorily required to be recorded by any Magistrate or particular person. However, it is normally accepted that such declarations would be recorded by Magistrate or by doctor to eliminate chances of any doubt of false implication.
- More sanctity is attached to a dying declaration recorded by Magistrate since the recording of dying declaration by a Magistrate assures the Court that the statement has been International Journal of Pure and Applied Mathematics Special Issue 1068 correctly understood and truthfully recorded by an impartial person.
- At the time of recording of dying declaration as far as possible the language used by maker of declaration should be used. Dying declaration cannot be rejected merely because it was recorded in other language than that deposed by deceased 2001 Crl.LJ3780.
- The prosecution should specifically bring on record that deceased had heard the statement recorded by Executive Magistrate and she admitted it to be true and correct. This is not mere formality but an essential part while recording the dying declaration.
Great importance is attached to a dying declaration by courts, and if properly
recorded keeping in mind all the essential ingredients, can form the basis of
conviction. Verdicts of higher courts on dying declaration shows it is used as
corroborative evidence as most of the recorded statements have incomplete
details which make it invalid. All the hospitals should have their standard
dying declaration Performa, so that all the statements can be precisely recorded
in it. The purpose behind this is, no single data will be missed and the
procedure will be recorded in an ideal way.
Most of the errors in dying
declaration are due to lack of knowledge among police officers, which could be
minimized by training them. The court has to give proper guidelines for
recording dying declaration by clearly defining grey areas. This will improve
the validity and reliability of the statement to a far more extent.Written
By: Abhishek Yadav