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Detailed Analysis of Dying Declaration under IEA, 1872

Dying Declaration is a legal concept refers to the effect that the statement which is made by a dying person explaining the circumstances of his death. The word Dying Declaration itself tells the meaning. A statement by a person who is conscious and knows that death is imminent concerning what he believes to be the cause or circumstances of his death.

A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they're about to die "do not lie". As a result, it is an exception to the general rule "hear say", which prohibits the use of a statement made by someone other than the person who repeated it while testifying during trial.

Section 32(1) of the Indian Evidence Act deals with the admissibility of dying declaration, which reads as follows: Statements, written or verbal, of 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:
  1. When it relates to cause of death:
    When the statement 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 persons' 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. So, recording of dying declaration becomes very important.
     
But there is a condition when the statement made by the person to be treated as true evidence in spite of the fact that he made the statement in his own favour and hardly any doubt behind the reason for that statement. That condition is Dying Declaration.

Dying Declaration is a statement made by the person while he was dying and states the reason for his death. The statement given by the dying person can be circumstantial or tells the cause for his death. Hence, the only statement given just before the death of a person is called Dying Declaration.

The person who is conscious of Compos Mentis and knows that death is about to happen can make a declaration and state the cause of his death and that statement will be Admissible and treated as Evidence in the Court. Declaration made by the deceased person can be in oral, written and by conduct. The word Dying Declaration explain the word itself.

Definition
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.

The purpose of this research is to identify the principle of "Leterm Mortem" which means "words said before death" & in a legal term it is called 'Dying Declaration'. The word "Dying Declaration" itself tells the meaning But this project highlights those questions, which have a great value in legal field relating to dying declaration.

The study tells about those statements which converted into dying declaration, different forms of dying declaration, which are admissible by law, it's importance in the law & clears that has it some value or not? And if it has, then what are the exceptions of it?

A statement by a person who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases.

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. A dying declaration is usually introduced by the prosecution, but can be used on behalf of the accused.

Word "Dying Declaration" means a statement written or verbal of relevant facts made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death. This is based on the maxim 'nemo mariturus presumuntur mentri' i.e. a man will not meet his maker with lie on his mouth. Our Indian law recognizes this fact that 'a dying man seldom lies.' Or 'truth sits upon the lips of a dying man.'

It is an exception to the principle of excluding hearsay evidence rule. Here the person (victim) is the only eye-witness to the crime, and exclusion of his statement would tend to defeat the end of justice. Section 32 of Indian Evidence act deals with the cases related to that person who is dead or who cannot be found.

Section 32:

Cases in which statements of relevant fact by person who is dead or cannot be found.

Statement, 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 expanse which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
  1. When it relates to cause of death.
  2. Or is made in course of business.
  3. Or against interest of maker.
  4. Or gives opinion as to public right or custom or matters.
  5. Or relates to existence of relationship.
  6. Or is made in will or deed relating to family.
  7. Or in document relating to transaction mentioned in section 13, clause (a).
  8. Or is made by several persons and expresses feelings relevant to matter in question.

But here, I am mentioning about 'dying declaration' which deals with the cases relate to cause of death. It is mentioned in sub-section (1) of section 32 of Indian Evidence act.
Section 32 (1) 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 said to be relevant whether the person who made them was or was not, at the time when they were made, under exception of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Illustration
The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow.

Statements made by A as to cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration wrong under consideration are relevant facts.

In Ulka Ram v. State of Rajasthan Apex Court held that, "when a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statement in law are compendiously called dying declaration."

The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that 'the principle on which a dying declaration is admitted in evidence is indicated in latin maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death, is admissible in evidence under this clause.

In a leading case, wife of the accused had borrowed money from the deceased in the sum of Rs. 3000 at the interest of 18 percent. Related to his debt a number of letters had signed by the wife of accused which was discovered from the house of deceased after his death. One letter which was not signed by someone had been received by the deceased K.N. on 20th March,1937, it was reasonably clear that it would have come from the wife of accused, who invited him to come Berhampur on that day or next day.

Widow of K.N. had told to the court that his husband had told him that Swami's wife had invited him to come to Berhampur to receive his payment. Next day K.N. left his house to go to Berhampur & on 23rd March, his body, which was cut in to seven pieces, found in a trunk in the compartment of a train at Puri. The accused was convicted of murder & sentenced to death because there was many evidence against him.

In Wazir Chand v. State of Haryana in which Court observed pakala ruling & said, 'applying these to the facts of the case their Lordships pointed out that the transaction in the case was one in which the deceased was murdered on 21st March & his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on 20th March that he was setting out to the place where the accused was living, appeared clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. Thus, the statement was rightly admitted.

In the case of R. v. Jenkins the accused was charged with the murder of a lady. He attacked her at midnight but she had recognized her because there was sufficient light to identify him. When magistrate's clerk asked her about the accused to record her statement, she said that he was Jenkins who had done the crime.

The clerk asked her that, did she make the statement with no hope of her recovery then, she replied that she was making that statement with no hope of recovery. But when the clerk read that statement over to her, before her signing, she told her to add the word 'at present' in that statement.

It was held by the court that the statement was not a dying declaration as her insistence upon the words "at present" showed that she had some, however faint hope of recovery.

Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the person who is recording the dying declaration must have some nexus with the deceased either circumstantially or by some fact. However, the doctor or police officer hold more value as compared to the normal person. As far as the dying declaration is concerned the magistrate entrusted to record the dying declaration, as the statement recorded by him is considered more evidential rather than statement recorded by the doctor, police officer and by the normal person.

The Supreme Court has found this to be true in law, at least in cases where the person dies of burn injuries. Court holds the opinion that "The law on the issue can be summarized to the effect that law does not give any direction that who can record a dying declaration but just provided that magistrate is above all the person in subject for recording the statement, nor is there any definite form, format or procedure for the same," said a bench of Justices B S Chauhan and Dipak Misra while quashing the high court order in the case of dowry death acquittal case.

The person who records the dying declaration must be satisfied that the maker is in a fit state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the police officer, but if it is recorded by the judicial magistrate that it will have more credential value and reliability.

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.

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 eye witness which states that the deceased was in a fit mental condition and able to make a dying declaration.

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 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 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 himself, but the accused statement will not amount to a confession.

Sub Section (1) states that: any judicial magistrate and metropolitan magistrate shall have the power to record the dying statement made by the dying person, whether the magistrate has jurisdiction in that particular case or not, he will be able to record the state provided under this chapter or by any other law for the time being enforced, or at the time before the commencement of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who record the statement should tell the accused that he has to made only statement which shall not be 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 raise 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. The judicial magistrate here tells the accused that he is not bound to make a confession, but he did not ask the question from the accused in order to satisfy in question, whether the statement made by the accused is voluntary or not.

In Mahabir Singh v. State of Haryana the Court held that, Where the Magistrate did not clear the rule that the statement made by the accused should not be amount to confession, if he does so then it will be used as evidence against him, cannot be considered. The Magistrate must satisfy himself that the statement made by the accused voluntary, no pressure or force was used on the accused while making the confession.

Any mark of the person of the accused to vitiate the voluntary character of the confession. When was held not only inadmissible under the section but it could not be used under the other provision of Indian Evidence Act such as sections 21 & 29?

The distinction between the English Law and Indian Law:

Under the English law, it is essential/ to the admissibility of dying declaration that the declarant must have entertained a settled hopeless expectation of death, but he need not have been expecting immediate death.

Indian law does not put any such restrictions. It is not required under Indian law that the maker should be under an expectation of imminent death, nor it is restricted to the case of homicide only. Before a dying declaration may be admitted, it must be proved that its maker is dead. If the maker survives, it may be used to corroborate or contradict his statement in the court.

Requirements:
According to Section 32(1) itself:
  1. A statement may be oral and written. But in Emperor vs. Abdullah, it was held that Conduct to be relevant as dying declaration.
  2. The statement must be as to:
    1. cause of death
    2. circumstances of the transaction
    3. resulted in the death
    Pakala Narayan Swamy vs. Emperor, -The statement made by the deceased to his wife that he was going to the accused to collect money from him (accused being indebted to the deceased), was held to be admissible under section 32(1).

    FIR as dying declaration
    Where an injured person lodged the FIR and then died. It was held in K.Ramchanda Reddy vs. Public Prosecution to be relevant as dying declaration.
     
  3. Death of the person is must while making the statement-If death is not the result, his statement inadmissible/as dying declaration, but it might be relied on under Section 157 to corroborate his testimony of to contradict him under Section 145. It can be used to corroborate the evidence in court under Section 6 and 8.
     
  4. Cause of death of the deceased must be in question.
  5. Expectancy of death is not necessary.
  6. Whatever may be the nature of proceeding-It may/be civil or criminal nature where the death of the person- deceased is in question.

Manner of recording Dying Declaration:

  • Rule 33 of Criminal Rules of Practice deals with the manner to be followed by the Magistrate while recording Dying Declarations: It reads as follows:
    1. While recording a Dying Declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death.
    2. Before taking down the declaration, the Magistrate shall disclose his identity and also ask the declarant whether he is mentally capable of making a declaration. He should also put simple questions to elicit answer from the declarant with a view to knowing his state of mind and should record the questions and answers, signs and gestures together with his own conclusion in the matter. He should also obtain whenever possible a certificate from the Medical Officer as to the mental condition of the declarant.
    3. The declaration should be taken down in the words of the declarant as far as possible. The Magistrate should try to obtain from the declarant particulars necessary for identification of the accused. Every question put to the declarant and every answer or sign or gesture made by him in reply shall be recorded.
    4. After the statement is recorded, it shall eb read over to the declarant and his signature obtained thereon, if possible, and then the Magistrate shall sign the statement.
       
  • Rule 33 of Criminal Rules of Practice itself says about the precautions to be taken by the Magistrate while recording the Dying declarations. They are as follows:
    1. The Magistrate shall disclose his identity to the declarant first.
    2. He shall ask the declarant whether he is mentally capable of making a declaration.
    3. He shall ask simple questions to elicit answers from the declarant to know his state of mind.
    4. Magistrate shall record questions and answers, signs and gestures together with his own conclusion.
    5. He should also obtain whenever possible a certificate from the Medical Officer as to the mental condition of the declarant.
    6. The declaration should be taken down in the words of the declarant as far as possible.
    7. The Magistrate should try to obtain from the declarant the particulars necessary for identification of the accused.
    8. Every question put to the declarant and every answer or sign or gesture made by declarant in reply shall be recorded.
    9. After recording statement, it shall be read over to the declarant and his signature should be obtained thereon if possible.
       
  • Our Honourable High Court in a decision "P. Srinivasulu Versus State of Andhra Pradesh" reported in "2004 Law Suit (AP) 121" observed that:
    "In the present case, as the deponent was unable to put the thumb mark since her hands were burnt, her toe mark was taken. The Court can always take judicial note of the fact that there used to be a practice previously prevailing of taking toe marks when it was not possible to take thumb impressions of the hands of the deponent. By mentioning the word 'signature', it causes considerable inconvenience to the Magistrate and creates a doubt whether he can take thumb impressions of the deponent or toe marks.

    Under the said circumstances, I am of the considered view that the Rule itself requires amendment and it should be clarified that in case of illiterate persons, and when a person is unable to put the signature, thumb marks can be obtained. It shall also be stated that in case hands were burnt, the toe marks could be taken. It is a matter to be considered by the High Court to bring about amendment to the necessary Criminal Rules of Practice and Circular Orders, 1990"

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it can be Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can also be in the form of Question Answer. However, there must be a distinct and definite assertion on the part of the person who produces the statement.

Possibly the declaration should be in written form in the exact words stated by the person who made the statement. When a magistrate records the dying declaration, then it should be in Question-Answer form as the magistrate will opt the maximum information rightly, as in some cases dying declaration becomes the sole way to help in the conviction of the accused.

Let us discuss some of the types in the elaborative form:
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.

Similarly, in the recent "Nirbhaya's Rape Case," Dying Declaration was made by her in the form of sign and gesture.

The dying declarations made by Nirbhaya were recorded.

The first declaration was recorded by the doctor when she was admitted in the hospital on the night of December 16, 2012 and the second on December 21 by the sub-divisional magistrate during which she gave exact details of the mishappening.

The third declaration was recorded by the metropolitan magistrate on December 25 and was mostly by gestures. The bench said that as far as the third dying declaration is concerned, this court has already held that the dying declaration made through signs, gestures or by nods are admissible as evidence.

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.

The deceased stated, "I was going home when I came near the house of Abdul Majid, Sohail shot me from the bush. He ran away. I saw." this was the dying declaration made by the deceased and further was unable to answer the questions. It was held that there is no question of incompleteness so far as the context of the case is concerned. In the case of Muniappan v. State of Madras.

The deceased made the dying declaration as follows:
"Sir,
This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of kamnav-kurechi stabbed me in my body with a knife."
Soon the deceased died after the statement. His thumb impression was taken after he was dead. This declaration against Muniappan was complete and admissible.

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 than 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.

Language of the statements
As far as the language of the statement is concerned, it should be recorded in the language of the deceased in which he is fluent or may possible than in Court language. The court cannot reject the dying statement on the basis of the language in which it was made. It can be recorded in any language.

Even if the dying declaration is made by the deceased in Urdu, Hindi, Punjabi languages, it was considered that statement could not be denied on the ground of language in which it was made solely or on the ground that it was recorded in Urdu. When the statement was given by the deceased in Urdu and the magistrate recorded it in English than in that case precaution should be taken while in explaining every statement to the deceased by another person, it was declared that the statement was the valid dying declaration.

Statements made in different languages
When two dying declaration was recorded in two different languages on is in Marathi and the other is in Hindi and the deceased were proficient in both the language the statement could be the basis of conviction as it was held in the case of Amar Singh Munna Singh Suryavanshi v. State of Maharastra.

Points to remember
  1. Dying declaration made by the deceased can be recorded in any language.
  2. If the statement was recorded in another language than the one which magistrate recorded, then precautions should be taken to explain each and every aspect and phrase.
  3. The court cannot deny or discard the dying declaration only on the ground of language.

In Biju Joseph v. State of Kerala, it was observed by the court that only ground that the statement of the deceased made was in her own language cannot reduce it value of the dying declaration.

It was given by the High Court of Kerala:
"Presumed that the statement made by the deceased when he was dying recorded in his language in which he has command or fluent, does not vitiate it value and court cannot deny or rejected on that basis. Judicial magistrate entrusted with the duty to convert the statement in court language. And such translation process would not affect the credibility that dying declaration".

Multiple dying declarations

Supreme Court of India in concern to multiple dying declarations, it can be considered upon without corroboration if there is no breakdown of fact in all the dying declaration. If all the dying declarations are similar to each other and state correctly the cause of death, and there is no contradiction between the statement it can be admissible but if the dying declaration is different from each other and there is a contradiction between them, then court will cross-examine the facts of the case or can examine the statements of other witnesses to determine the truth and sanctity of statement regarding the case.

The statement of the deceased should match the facts and circumstances of the case. It is very important to understand the character of multiple dying declarations.

Points to be considered in multiple dying declarations:
  1. There should be regularity in all the dying declaration.
  2. If all the dying declaration does not match or say overlap, then the court will examine the facts of the case with the dying declaration or examine the witnesses.

In Kushal Rao v state of Bombay that case Court set the importance rules for dying declaration and what is the right process or manner to record it. In this case, if the dying statement made by the deceased. That it should be recorded in the form of question answer form, shall be endorsed/supported by the doctor that the deceased was in good mental state, can be recorded by the person who is legally entitled to record, if there are multiple dying declarations than it should be consistent, so that the court can rely on it.

The Supreme Court has held that multiple dying declarations can be reliable when it made without corroboration if consistency is maintained throughout the statement. Otherwise, the courts would have to cross-examine the statements of other witnesses to determine the truth in a criminal trial.

Expectations of death is not necessary

Under English Law, the victim should not be under any expectation of death. Evidence Act has taken this law from English law. If the statement has been made even when no cause of death had arisen then also the statement will be relevant. It is not important at all that the statement recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor, it was held that the letter given by the deceased to his wife before going to the place where he was killed was relevant. The court said that the statement made must be at any rate near death or the circumstances of the transaction explaining his death is relevant under section 32 of Evidence Act. In this case, the court stated that dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death. Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.

Dying declaration Case laws and landmark Judgments

  1. Lakhan v. State of M.P. in this case supreme court provides that, when the condition is satisfied that the dying declaration made by the deceased is true and can be relied upon, as the declarant is found to be conscious and mentally fit while making the statement, and the statement made by him proven to be voluntarily and no compulsion was there while making the statement and can be put for the sole basis of conviction. In that situation there is no need for corroboration is necessary.

    In case of multiple dying declarations consists, which consist in the form of irregular interval and contradict each other, dying declaration recorded by the person who is entitled to record like magistrate then there is no doubt and can be found to be reliable.

    But in circumstances where it was observed that the statement made by the deceased is not voluntarily but due to some force or compulsion, then the court raised suspicion on that dying declaration and Court should re-examine the statement of witness and other facts in order to determine the truth.
     
  2. In the case of State of Punjab v. Parveen Kumar, the Supreme Court set forth some measure to test the veracity in the case when there is more than one dying statement. The court provides that there must be a series of examinations in order to determine the truth. If the statements provide different versions and do not couple with given facts, then the court must opt for other evidence in their record to clarify the things so that truth can be inferred.
     
  3. In the case of Sudhakar v. State of Madhya Pradesh, the Supreme Court while deciding the issue of multiple dying declarations, which varying from other statements and have no series related to each other, this will raise a doubt in the eyes of court to whether the statement should be believed or not, in order to clear the issue, the Court has given some directions which help to guide while exercise the judgment by court in such matters, examined.

    The Court put forward the point that when multiple dying declarations made by the declarant, if found either contradictory or are at variance and having no nexus to each other to a large extent and narrate another version of the story, then the test of common reasonableness would be applied while examining which dying declaration is corroborated by circumstantial evidence.

    Further, when the dying declaration was made the condition of the deceased at the time of making of each declaration concerned, medical report of the deceased, truthfulness of statements made by deceased, possibility of deceased being tutored, are some of the points which would guide while exercise of judicial function by court in such matters.

    The Supreme Court also observed that the dying declaration is the statement made when a person is at their bed end, as the word dying declaration itself signifies its meaning. A person having a serious apprehension of death and there shall be no chances for his survival. At this point, the court assumed that whatever the statement made by the declarant is purely true as the man will never meet his maker with a lie on his lips and person will speak only truth.
     
  4. Natha Shankar Mahajan v. State of Maharashtra in this case the supreme court ruled that if there is a doubt about the statement made by the deceased, in that case, the gain will transfer to the accused. As this is the correct Law preposition. Moreover, on the other was round if the statement found to be true and reliable ten it can be used solely as the purpose of the convection.
     
  5. The Supreme Court in the case of Surajdeo Oza v. State of Bihar does not give an affirmative answer to the question and held that merely because the dying declaration is a brief statement it is not to be discarded. On the contrary, the length of the statement itself guarantees the truth.

The Court has to scrutinize the dying declaration carefully and examine each and every sort of situation and must ensure that the declaration is not the result of tottering prompting of imagination and the deceased had the opportunity to observe and identify the accused and was in a fit state while making the dying declaration.

Dying deposition

Dying deposition is almost a dying declaration. The main difference between both is that the dying deposition is always recorded in the presence of a magistrate. Whereas dying declaration can be recorded even by a normal person, doctor and by a police officer.

A deposition is recorded when the lawyer of the accused is present and magistrate record the dying declaration. But dying declaration has no such conditions, but the evidentiary value will be more if the statement is recorded by the magistrate. However, it can be recorded by the doctor or police officer also.

Illustrations
A case where the deceased was given the statement to his father that I inhale the poison because of my heartbreak and the same was conveyed to the police and father of the deceased also said that the deceased was conscious and in a fit state of mind and the same was endorsed by the autopsy report. After that when the police investigate the matter it was found to be true that the cause of his suicide is the girl who used to aid and abet him to commit the suicide. Hence the statement recorded by the normal person(father) has admissible in a court of law.

This is the example of dying declaration

In a case where a woman is burnt by his father-in-law. And the woman was admitted to the hospital by the neighbour and when the police were informed about the matter they came to rely on the statement of the deceased but the doctor tells them that the deceased is not in a position to answer the question. After 2nd and 3rd day when the woman is in better condition and subsequently magistrate was available to record the dying statement and the accused lawyer was also there. The statement is recorded and this is called dying deposition.

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. As in India law, it was presumed that the man who is going to die, not meet his maker with a lie on his lips this is because, when the person is at his bed end all the desire and greed of person come to an end so probably there is no motive to lie.

After that, the court must be satisfied with the condition that the deceased must be in a fit state of mind while making the statement. 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.

In Khushal Rao v. State of Bombay Apex Court laid down the following principles related to dying declaration:
  1. There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.
  2. A dying declaration is not a weaker kind of evidence than any other piece of evidence;
  3. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
  4. A dying declaration stands on the same footing as other pieces of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.
  5. A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory & human character.

Exception 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:
  1. 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.
  2. 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.
  3. The statement which is inconsistent has no value and cannot be considered as evidentiary in nature.
  4. The statement made by the deceased should be free from any influential pressure and should be made spontaneous.
  5. It is perfectly allowed to the court if they reject any untrue statement which contradicting in nature.
  6. If the statement is incomplete in the sense which means it cannot 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.
  7. Doctor's opinion and the medical certificate should with the statement and support that the deceased is capable of understanding what statement he makes.
  8. 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.

Dying Declaration should be free and spontaneous

Dying declaration due to compulsion or pressure not be relied upon whereas dying declaration free from any biased relied upon. As it was held in the case of Krishna Lal v. Jagun Nath that the wife was burnt by the husbands-in-law and in her dying declaration she held that she was not burnt by her husbands-in-law and she was believed.

Some relevant case laws:
  1. The deceased must be in a fit state of mind and capable of making a statement at the time of recording of dying declaration AIR 2001 SC 2383.
  2. Prior to recording of statement of deceased, the doctor shall do a thorough and professional assessment of physical and mental condition of the patient. 1998 Crl.LJ 585.
  3. 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. 2010 AIR SCW 5494.
  4. 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 correctly understood and truthfully recorded by an impartial person. 2010(3) SCC (Crl.) = 2010 AIR SCW 5993.
  5. At the time of recording of dying declaration as far as possible the language used by maker of declaration should be used. (1999)3 Mah. LJ 581 (DB) Bomaby.
  6. Dying declaration cannot be rejected merely because it was recorded in other language than that deposed by deceased 2001 Crl.LJ 3780.
  7. 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. 2000 (2) Mah. LJ 3 (DB) Bombay.
  8. The Magistrate who had recorded dying declaration and the doctor who certified about the condition of the deceased out to be summoned as a witness 2000(2) ALT (Crl.) 448.
  9. Where Magistrate was not present at the time of recording of statement of deceased and statement recorded by the Head constable was fully convincing, it can be safely relied upopn. AIR 1997 SC 234.
  10. Statement recorded by police officer is reliable when evidence of doctor w`as showing that the deceased was fit to making statement at that time AIR 1983 SC 164.
  11. Although a dying declaration could not be rejected on the ground that in absence of any other person available it was recorded by a police officer as the deceased was in a critical condition, the dying declaration was left out of consideration as it contained a statement which was a bit doubtful AIR 1979 SC 1173.
  12. Where police personnel who recorded dying declaration did not mention time required for recording it and did not obtain medical certificate on completion of recording of dying declaration that the victim was conscious such dying declaration was not reliable. 2010(3) AIR Bomb. R.27 (DB).
  13. Where doctor apprehended that the injuries could result into death of deceased and therefore, he sent for Magistrate to record dying declaration but the Magistrate was reported to be out of town, the doctor was most capable and authorized person to record the dying declaration. The dying declaration recorded by doctor after certifying that deceased was in full senses and the statement was read over to him and on which after fully understanding the deceased had put his thumb impression, is itself sufficient to base conviction of accused. 1991 All (Crl.R.)303.
  14. Where dying declaration recorded by doctor was suffering from infirmities and also it was uncorroborated by other evidence, conviction solely on basis of such dying declaration was not proper. 1995 Crl.LJ 2412. (DB) (Orisha).

Conclusion
The dying declaration is not specifically mentioned in our penal law under Section 32(1) of IPC. it is the statement made by the person who is going to die, and that statement will be considered as evidence in court, how his death caused and who is the mugger. There are many conditions that relied upon the dying declaration that it should be in an adequate manner as dying declaration is the weapon who convicted the accused and stood as strong evidence.

The admissibility of dying declaration accepted in our Indian court because the law presumes that in Leterm Mortem i.e in his last parting words the man will never lie as anyone will meet his maker with a lie on his lips. This is because a man who is going to die, end with all his needs and wants and his interest is no more passionate for self-deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court has the right to reject the statement. Or there are other situations and circumstances which coupled with dying declaration for its admissibility which discussed above.

Since dying declaration contains the final words of the person dying correlated to the causes of death of such person or as to the situation leading to the death of such person, it is a material piece of evidence. Every attempt should be made to stay it complete from all sorts of impurity.

Yet, human character and standard of conduct can't govern away the danger of demolishing of dying declarations because of numerous elements, for example, the psychological state of the individual making proclamation, mental state of the individual account the dying assertion, encompassing conditions of the dying presentation, the typical and customary human mistakes in watching the things and in conveying everything that needs to be conveyed to the others particularly, the outsiders, and so on.

At the point when these realities combined with the conditions as examined above-identified with the diminishing trust remainder of the dying declarations are mulled over, it very well may be securely and carefully presumed that the Dying Declarations are to be conceded in proof after due validation and in the wake of confirming the encompassing conditions prompting the dying declarations.

It isn't protected nowadays to accord consecrated status to the dying declarations to base the discoveries of a case exclusively on its premise and to choose the destiny of the cases and criminal procedures solely on its premise by the Courts and even by the Investigating organizations.

"Dying Declaration" is a legal concept refers to that statement which is made by a dying person, explaining the circumstances of his death. 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 settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do."

Dying declaration is admissible on the sole ground that it was made in extremis. And in India, its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by the above-mentioned statements given by different courts that dying declaration can be in any form but it must be recorded carefully & duly proved, which the courts make admissible as the "Dying Declaration".

Written By: Bhaswat Prakash, Ajeenkya DY Patil University, Pune (B.A.LL. B)

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