INTRODUCTION

Dying declaration is bases on the maxim “Nemo moriturus praesumitur mentire” i.e. a man will
not meet his maker with a lie in his mouth. The statements made by a person as to the cause of
his death or as to circumstances of the transaction resulting in his death is called a dying
declaration. Section 32(1) of the Indian Evidence Act talks about dying declaration. A dying
declaration is admissible in evidence even though it has not been given on oath and the person
making it cannot be cross-examined. It is an exception to the rule against hearsay. This
exception, as such dates back as far as the first half of the 1700s, — the period when the hearsay
rule was coming to be systematically and strictly enforced. The custom of using dying
declaration probably comes down as a tradition long before the evidence system arises in the
1500s. Admissibility of a dying declaration as a relevant piece of evidence is guided by the
principle of necessity and religious belief of the olden days. The necessity being, that in cases,
where victim is the only eye-witness to the crime, the exclusion of his/her statement might defeat
the ends of justice. The religious sanction behind their admissibility comes from the belief in the
fact, that a sense of impending death produces in a man's mind the same feeling as that of a
conscientious and virtuous man under oath-nemo moriturus praesumuntur mentiri.

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. The word dying declaration explains the
word itself. It means a written or verbal statement of relevant facts made by the person who is
about to die or is dead. It is the statement of a person who knew the cause of his death or the
circumstances of his death. It is said that a man will not meet his maker with lying on his mouth
(nemo mariturus presumuntur mentri). In our Indian Law it is a fact that is believed that a ‘dying
man can never lie’ or ‘truth sits upon the lips of a dying man’

The statement made can be verbal/ oral connected to the circumstances of the transaction that
resulted in the death caused to that person; such statement must be made before dying known as
“dying declaration”. Such statement plays relevancy when the person who is making the
statement, is under an expectation of death, irrespective of the nature of proceedings in which the
cause of death comes into question. If the declarant survives after making the statement then it is
inadmissible as dying declaration but the statement can be used under Section 157 of the Indian
Evidence Act, in order to contradict, corroborate, impeach or confirm the credit of the person by
whom it was made.
SECTION-32(1):- Cases in which statement of relevant fact by person who is dead or
cannot be found, etc ., is relevant. — 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 is made by a person as to the cause
of his death, or as to any of the circumstances of the transaction which resulted in his death, in
cases in which the cause of that person's death comes into question. Such statements are relevant
whether the person who made them was or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of the proceeding in which the cause of his
death comes into question.

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.

FORMS OF DYING DECLERATION

1- ORAL DYING DECLARATION

‘Oral’ means by words. It is not necessary that the dying declaration shall be in a written form or
a question answer form. Where the dying declaration is oral , the exact words stated by the
deceased to the witness are of utmost importance. In order to be acted upon, the evidence with
regard to an oral dying declaration should be subjected to strictest and closest circumstances.
Where the oral dying declaration is found true and gets corroboration from material particulars
available on record it can form the basis of conviction of an accused.

Where dying declaration is oral and recorded, and is found true and trustworthy, it can form the
basis of conviction. An oral dying declaration alleged to have been made by the deceased, should
be scrutinised cautiously. Where oral dying declaration gets corroboration from written dying
declaration, it can form the basis of conviction. A dying declaration recorded by a magistrate,
carries mush weight, as it stands on a much higher footing than a dying declaration dependent
upon oral testimony, which is fallible to all the infirmities of human memory.
An oral dying declaration that creates a doubt is not worthy of credence. Where an oral dying
declaration is corroborated by the testimony of more than one independent witnesses, it cannot
be rejected merely on the ground that the ability of the declarant to make an oral dying
declaration was not supported by medical evidence. Where the evidence regarding the dying
declaration is reliable and believable, even an oral dying declaration can form the basis of
conviction.

Where only close relations arrived on the spot on hearing the shout of the victim and no
independent witness arrived on the spot, oral dying declaration made to the relation-witnesses
was believed and the accused was convicted. Even when the dying declaration made to the
doctor has not been recorded in the form of question and answers and in the words of the
declarant, the dying declaration can be treated as oral testimony by the deceased as to the cause
of his death and the circumstances of his transaction which resulted in his death, thus becomes a
relevant fact when the cause of death of deceased is in question.The dying declaration of oral
nature is generally considered a weak type of declaration.

2- WRITTEN DYING DECLARATIONS

The statement of a deceased person in document is known as dying declaration in writing. It is

seen in very few cases that there comes before the court any dying declaration written by the
deceased. It is because the condition of the deceased, most of the times is very sensitive and
serious where he is not really in a state or in a position to write down the causes and
circumstance leading to his death or condition. It is because of this that the practice of oral dying
declaration and by gestures and signs was encouraged and admitted by the courts.

Letters written by a deceased disclosing the circumstances and cause of his or her death is also
admissible under section 32(1). Moreover, a particular document which is the copy of the
original is also admissible under this section as a relevant fact and also as an admission under
section 21 of the Indian Evidence Act.

Dying Declaration: An Exception to the Rule Against Hearsay

Black's Law Dictionary defines hearsay 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. Hearsay evidence is testimony in Court of a statement made out of the Court, the
statement being offered as an assertion to show the truth of matters asserted therein, and thus
resting for its value upon the credibility of the out of Court asserter."

The hearsay rule generally disallows the use of out of Court statements as evidence of the truth
of the matters asserted in that statement. Because the person who is giving this evidence is not
telling his experience but that of another person. Dying declaration is one of the exceptions to the
rule against hearsay. The main guiding reason for making dying declaration an exception to the
hearsay rule arises out of necessity. If this evidence not considered very purpose of justice will
be forfeited in certain situation when there may not be any other witness to the crime except the
person who has since died. Since, there might arise situations where someone would have been
shot at or inflicted with fatal injuries while no one was around. In such situations to let the
accused go free just because there was no witness to the crime would result into miscarriage of
justice. Hence, to avoid situations like above dying declaration has been made an exception to
the rule against hearsay.

Circumstances of the Transaction: Broadening the Scope of Dying Declara-

tion
The scope of dying declaration in India is broader than in England. Under English law only the
statements that directly relate to the cause of death are admissible. The second part of clause (1)
of Section 32 i.e. statement made by a person as to any of the circumstances of the transaction
which resulted in his death is not to be found in the English law. According to Black's Law dic-
tionary the word 'transaction' means the act or an instance of conducting business or other
dealings or it also means something performed or carried out. Whereas the word 'circumstances'
means an accompanying or accessory fact, event or condition, such as a piece of evidence that
indicates the probability of an event. The Privy Council in the case of Pakala Narayan Swami
v. Emperor explained the term 'circumstances of the transaction'. The Court held that the
circumstances must have some proximate relation to the actual occurrence. General expressions
indicating fear or suspicion whether of a particular individual or otherwise and not directly
related to the occasion of the death will not be admissible. Explaining the same phrase in its
recent judgment the Supreme Court held that the statement of a deceased relating to the cause of
death or circumstances of the transaction that resulted in his death must be sufficiently or closely
connected with the actual transaction. The transaction resulting in death cannot possibly mean
any fact or series of facts that have no direct or organic relation to death.

The Supreme Court in Rattan Singh v. State of H. P, further broadened the scope of the
expression and held that "circumstances of the transactions" mean that there need not necessarily
be a direct nexus between the circumstances and death. The Court held that even distant
circumstances could become admissible if it has nexus with the transaction that resulted in death.
Relying upon SharadBirdhi Chand Sarda v. State of Maharashtra the Court held that:

"It is enough if the words spoken by the deceased have reference to any circumstance that has
connection with any of the transactions that ended up in the death of the deceased. Even distant
circumstances can also become admissible under the subsection provided it has nexus with the
transaction that resulted in death."

Thus, what emerges from the above judgments is the proposition that, it is immaterial whether
the circumstances distant or near since both are embraced by the expression were "circumstances
of the transaction". All that is required is that it must be circumstances of the transaction that re-
sulted in death.
The phrase "circumstances of the transaction" conveys some limitation. It is not as broad as the
analogous use in "circumstantial evidence" which includes evidence of all relevant facts. For
example by no stretch of reasoning it can be said that what the deceased told his wife that he
would come back for lunch is a circumstance of the transaction which resulted in his death.
Similarly a statement merely suggesting motive cannot be admitted in evidence unless it is
initimately connected with the transaction itself as a circumstance.

Distinction Between Indian and. English law

 Sense of Impending Death

The law relating to dying declaration in India and England differs significantly. In England a
dying declaration should have been made under the sense of impending death, i.e.; the person
making it should have given up all hopes of living (Settled hope less expectation of death).
Whereas a dying ' declaration in India is relevant whether the person who made it was or was
not, at the time it was made under the expectation of death. Thus, in India it is immaterial
whether there existed any expectation of death at the time of the declaration. In R v. Jenkins the
deceased made a statement implicating the accused. Her dying declaration included the words
that it was made 'with no hope of my recovery'. While it was being read to her she sought to
amend the same and asked to add 'present' before hope. Thus, her dying declaration contained the
words that it was made 'with no present hope of my recovery'. The Court held, that the statement
could not be received in evidence since, at the time of making it the deceased I was not under
settled hopeless expectation of death and her dying declaration suggested that at the time of
making it she entertained a faint hope of recovery.

Had the same situation arisen in India, it would have been admitted in evidence since in India
any statement made by a person (since deceased) as to the cause of death circumstances of the
transaction resulting in death of that person is admitted in evidence. Thus, her statement
implicating the accused would have sufficed to make it admissible under Section 32(1) of the
Act. The problem with English position is that of ascertaining the existence of knowledge of
approaching death. Since, this ascertainment is to be done by the Judges depending upon the
circumstances of each case; it always leaves the possibility of subjectivity creeping in.

 Scope of application
In England the admissibility of a dying declaration is confined only to the cases of homicide
whereas in India a dying declaration will be admissible in any case in which the cause of death of
a person comes into question. In R v. Mead the accused was charged with perjury. He obtained
an order for a new trial and shot the deceased before it took place. A dying declaration made by
the deceased concerning the transaction out of which the prosecution for perjury arose was
rejected. The Court held that the dying declarations are only admissible where the death of the
deceased is the subject of the charge, and the circumstances of the death are the subject of the
declaration. For ex ample, in India in a charge of rape, a woman's dying declaration is admissible
even if the death of the deceased is not the subject-matter of the charge, provided that the
question of her death comes in charge of rape. But, in England such dying declaration is not
admissible to prove rape. Since, in such cases, the death of the deceased is not the subject-matter
of the charge.

In India a dying declaration is admissible even in civil suits also. Section 32(1) of the Act clearly
provides that such statements (i.e. statements as to cause of death or as to any ............. his death)
are relevant whatever may be the nature of the proceedings in which the cause of his death
comes into question. Thus, in India admissibility of a dying declaration does not depend upon the
nature of the proceedings. But in England a dying declaration is admitted in evidence only for
the criminal cases and that too it is restricted only to those cases where the death is the subject-
matter of the charge.

 Evidentiary value
Another distinction between Indian and English law is with respect to evidentiary value to be
attached to a dying declaration. This difference was pointed out in the case of Plus Jasunga S/o
Akumu v. R. where the Court emphasized that the weight to be attached to a dying declaration
recorded under S. 32(1) of the Act would be less than the weight to be attached to a dying decla-
ration under common law rules. The reasoning behind such observation was that the dying
declaration under S. 32(1) would lack that special quality that is thought to surround a
declaration made by a dying man who was conscious of his condition and who had given up all
hopes of survival.

EVIDENTRY VALUE OF DYING DECLARATION

There doesn't seem to be much controversy as far as, the question of a dying declaration being a
significant piece of evidence is concerned. The divergent and conflicting Judicial opinion has
been with respect to value and importance to be attached to dying declaration in basing the
conviction of an accused: The Courts in India have held time and again, that a dying declaration
before it could be relied upon must pass a test of reliability, as it is a statement made in the
absence of the accused and there is no cross-examination of the declarant to test its genuinety or
veracity. Thus, a dying declaration must be subject to close scrutiny. A dying declaration in India
stands on a different footing than in England. Under the English law, credence and the relevancy
of a dying declaration is important only when person making such statement is in hopeless
condition and expecting an imminent death. In India, the weight to be attached to a dying
declaration depends not upon the expectation of death that is presumed to guarantee the truth of
the statement, but upon the circumstances and surrounding under which it was made, and very
much also upon the nature of record that has been made of it.
It is almost a question of fact whether a dying declaration should be relied upon or not. In one of
its earliest judgments on dying declaration the Supreme Court had held that, it was not safe to
convict an accused on an uncorroborated dying declaration. Since then, the Supreme Court in a
catena of cases has held that conviction can be based on an uncorroborated dying declaration
provided that the Court has come to the conclusion that it is true and voluntary. The most
significant being the case of Khushal Rao v. State of Bombay where, the Supreme Court laid
down several propositions with respect to dying declarations and these propositions till date
continue to govern the law relating to dying declarations. The Court held, that there is no
absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is
corroborated, nor can it be said that a dying declaration is a weak piece of evidence. The Court
further held that a dying declaration stands on the same footing as another piece of evidence and
has to be judged in the light of surrounding circumstances and with reference to the principle
governing the weighing of evidence. Speaking on the same line the Supreme Court held in the
case of Padmaben Shamalbhai Patel v. State of Gujarat that, "a dying declaration is an
independent piece of evidence-neither extra strong nor weak and can be acted upon without
corroboration if it is found to be otherwise true and reliable."

The position with respect to corroboration of a dying declaration in India is similar to that in
England. The position being, that there is no absolute rule of law that prevents an uncorroborated
dying declaration from being admitted in evidence. Courts while admitting dying declarations
need to do a great balancing act between the rights of the accused and ensuring delivery of jus-
tice. Since, the accused cannot cross-examine declarant as to the truth of his/her declaration;
there arises need for a dying declaration that will inspire full confidence of the Court in its
correctness.

Section 32(1) of the Act makes it clear that the declaration can be admitted only when the death
of the declarant comes into question. Such a construction poses problems in many situations. For
e. g. B and his wife were shot at. Both of them died. Mrs. B. when dying described the assailant.
Her declaration was excluded, because it was not her death but the death of her husband that was
the subject matter of the charge. Wigmore calls this exclusion the senseless rule of exclusion. In
situation such as above the declaration with respect to other person's death also need to be
admitted in order to prevent the miscarriage of justice. The law commission of India, in its sixty-
ninth report on the Indian Evidence Act, 1872 observed that the language of the Section is even
now capable 1 a wider construction". Accordingly it recommended that, an explanation II might
be added to Sec. 32 (1) on the following lines;

"The circumstances of the transaction which resulted in the death may include facts relating to
the death of another person."
 ADMISSIBLITY OF DYING DECLARATION
A dying declaration made by a person as to his cause of death or any of the circumstances of the
transactions which resulted in his death, in cases in which the cause of death comes into
question, is relevant under section-32 and is also admissible in evidence. Though dying
declaration is indirect evidence being a piece of hearsay, yet it is an exception to the rule again
admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other evidence
requires no corroboration for forming the basis of conviction of the accused. But then the
question as to how much weight can be assigned to the dying declaration is a question of fact and
has to be determined on the facts of each case.

Following conditions must be fulfilled to taking a statement admissible as dying declaration-

1. The declarant must about to die- That the person who has made the statement must be dead
otherwise statement could not be taken into consideration as the name itself suggests “dying
declaration”.

2. The declaration made must be in context to the cause of the death- Any statement made that
has co-relation with the death of the declarant is considered admissible.

3. Cause of death must be in question- It is essential condition that the person who is about to
die, his/ her death must be in question.

4. Injury caused- That the injuries that are caused to the declarant must be the cause of the death
of him, otherwise said statement cannot be taken into consideration.
 CONCLUSION
A dying declaration is indeed an important piece of evidence. So much so that conviction can be
based solely on the basis of a dying declaration. An analysis of both English and Indian position
makes it very clear that dying declarations continue to enjoy sacrosanct status in evidence. The
question that needs to be answered is: how relevant dying declarations are in today's context and
how much reliance can be placed on it? The basis for the sacrosanct status of dying declarations
continues to be the good old belief 1 that a man will not meet his maker with a lie on his lips.
This belief presupposes that people are religious and they will not lie on their deathbed. But, this
does not seem to; happen in real life where feelings of hatred, revenge and many times love take
precedence over the urge to speak the truth. This ironically belies the very principle underlying
the admittance of dying declarations, i.e. a man will not meet his maker with a lie on his lips.
The general principle on which this species evidence is admitted is that they are declarations
made in extremity, when the person is at point of death and when every hope of this world is
gone. At that point of time every motive to falsehood is silenced and the mind is induced by the
most powerful consideration to speak the truth. Such a Solemn situation is considered by the law
as creating an obligation equal to which is imposed by a positive oath administered in a court of
justice. The dying declarations are weak kind of evidence even though they are based on the
principle that a person would not die with a lie in his mouth. The law related to dying declaration
need certain changes to be incorporated into it, so as to make it more relevant in today’s context.
 ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher of Law of Evidence who
gave me the golden opportunity to do this wonderful project on the topic of Dying declaration
and its evidentiary value, which also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to her.

Secondly I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame. The success and final outcome of this project required a lot of
guidance and assistance from many people and I am extremely privileged to have got this all
along the completion of my project. All that I have done is only due to such supervision and
assistance and I would not forget to thank them.

Your Sincerely

Vaibhav Patel
 INDEX

S. No. TITLE PAGE No.

1- Introduction 1

2- Forms of Dying declaration 2-3

3- Dying Declaration: An Exception to the Rule Against 3-4

Hearsay

4- Circumstances of the Transaction: Broadening the 4-5

Scope of Dying Declaration

5- Circumstances of the Transaction: Broadening the 5-6

Scope of Dying Declaration

6- Distinction Between Indian and English law 6-7

7- Evidentiary value of Dying declaration 7-8

8- Admissibility of dying declaration 9

9- Conclusion 10

10- Bibliography 11
 BANARAS HINDU UNIVERSITY

FACULTY OF LAW

LAW OF EVIDENCE ASSIGNMENT

ON
“Dying declaration and its evidentiary value”

SUBMITTED BY:-
VAIBHAV PATEL
16225BLT061

SUBMITTED TO:-
Ms. SHWETA CHATURVEDI
 BANARAS HINDU UNIVERSITY

FACULTY OF LAW

LAW OF EVIDENCE ASSIGNMENT

ON
“Dying declaration and its evidentiary value”

SUBMITTED BY:-
RAJAT MISHRA
16225BLT042

SUBMITTED TO:-
Ms. SHWETA CHATURVEDI
 ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher of Law of Evidence who
gave me the golden opportunity to do this wonderful project on the topic of Dying declaration
and its evidentiary value, which also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to her.

Secondly I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame. The success and final outcome of this project required a lot of
guidance and assistance from many people and I am extremely privileged to have got this all
along the completion of my project. All that I have done is only due to such supervision and
assistance and I would not forget to thank them.

Your Sincerely

Rajat Mishra