DYING DECLARATION
ADV. USHA ANDEWAR
Part II – Chapter II – Sections 26 (a)
Statements by person who cannot be called as witnesses
INTRODUCTION
A 'Dying declaration' means the statement of a person who has died explaining
the circumstances of his death. Such a statement can be proved when it 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.
Dying declaration is admitted in evidence. The principle on which it is admitted
as evidence is indicated in the legal maxim ‘nemo moriturus praesumitur
mentire’ which means a man will not meet his maker with a lie in his mouth.
It is just a presumption that one fears God and an assumption that at that
moment when one’s facing death, one’s mind is induced to speak the truth. This
is exactly the reason as to why courts have held that an accused can be convicted
solely on the basis of ‘Dying Declaration.’
Truth sits on the lips of dying man was said by Mathew Arnold.
Section 26 (a) reads as under :-
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|Page
(a) 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 ;
(a) whether A was murdered by B;
(a) or A dies of injuries received in a transaction in the course of which she
was ravished.
(b) whether she was ravished by B;
(c) or 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 the cause of his or her death, referring respectively
to the murder, the rape, and the actionable wrong under consideration, are
relevant facts.
Therefore, this section provides exception to the general rule that, all oral
evidence must be direct.
Principle
Dying declarations are statements oral or documentary made by the person as
to the cause of his/her death or as to the circumstances of the transactions
resulting in his/her death. The grounds of admission of a dying declaration are:-
1. Firstly, for the victim being generally the only principal eye-witness to the
crime, the exclusion of his statement might defeat the ends of justice.
2|Page
2. Secondly, the sense of impending death which creates a sanction equal to
the obligation of an oath.
The general principle on which this species of evidence is admitted is that they
are declarations made in extremity, when the party is at the point of death and
when every hope of this world has gone, when every motive to falsehood is silence
and the mind is induced by the most powerful consideration to speak the truth;
a situation so solemn and so lawful is considered by law as creating an obligation
equal to that which is imposed by a positive oath administered in a Court of
Justice; R. Vs. Woodcock, (1789) I Leach 500.
The principle on which the Dying Declarations are admitted in evidence is
indicated in legal maxim "Nemo moriturus praesumitur mentiri" implies that a
man who is on death bed would not tell a lie to falsely implicate innocent person;
Sharda Vs. State of Rajasthan - AIR 2010 SC 408.
Evidentiary value of a dying declaration
By enacting this the Legislature in its wisdom has placed a dying declaration on
par with evidence on oath for the reason that at the time when a man is in danger
of losing himself it is not likely that he would speak a falsehood and involve an
innocent person. There is no absolute rule of law nor is there any rule of
prudence which has ripened into a rule of law that a dying declaration cannot
form the sole basis of a conviction unless it is corroborated by independent
evidence.
Essential conditions for the applicability of dying declaration
(1) To whom the statement is to be made and its form :-
A statement of dying declaration could be made to any person - a doctor,
a Magistrate, a friend or near relative, a police officer etc. However, a
statement recorded by a Magistrate or doctor is considered more reliable,
and that recorded by a police officer or close relative are not considered
hat reliable (it requires more scrutiny).
3|Page
No particular form of recording a statement is prescribed. The statement
could be written, oral or even verbal (e.g., gestures). In Queen Empress
Vs. Abdullah, (1885) ILR 7 All 385; where the throat of the deceased girl
was cut and she being unable to speak indicated the name of the accused
by the signs of her hand, this was held to be relevant as dying declaration.
Two dying declarations giving contrary versions. Dying declaration duly
recorded by the doctor in presence of two other doctors stating that she
was burnt by her mother-in-law and husband for failure to bring dowry.
Second declaration not proved by competent witness, cannot be relied
upon, accused convicted on the dying declaration recorded by doctor;
Harbans Lal Vs. State of Haryana - AIR 1993 SC 819: 1993 Cr LJ 75
(2) The person making the statement must have died :-
The death need not occur immediately after the making of the statement
(as discussed above). However, the death must occur. If the persons
making the declaration chances to live, his statement is inadmissible as a
'dying declaration', but it might be relied under section 160 to corroborate
his testimony when examined. Such a statement can also be used to
contradict him under section 148. The fact that the person is dead must
be proved by the person proposing to give evidence of his statement.
(3) Statement must relate to the cause of his death or the circumstances
of the transaction which resulted in his death :-
If the statement made by the deceased does not relate to his death, but to
the death of another, it is not relevant; Ratan Gond Vs. State of Bihar, AIR
1959 SC 18 For example, where the wife made a statement that her
husband is killed by Z and then she committed the suicide.
The circumstances of transaction resulting in death must bear proximate
relation to the cause of death or actual occurrence. The general
4|Page
expressions indicating fear or suspicion, whether of a particular individual
or otherwise and not directly related to the occasion of death will not be
admissible. But, statements made by the deceased that he was proceeding
to the spot where he was in fact killed, or as to his reasons for so
proceeding, or that he was going to meet a particular person, would to
each of them be circumstances of the transaction.
(4) The cause of death must be in question :-
The declaration must relate to the death of the declarant. In Dannu Singh
Vs. Emperor, A and five other persons were charged with having
committed a dacoity in a village. A, who was seriously wounded while
being arrested, made before his death a dying declaration as to how the
dacoity was committed and who had taken part in it. It was held that
declaration was not admissible in evidence against other persons, as it
does not relate to his death, but relates to participation of his associates
in the dacoity.
(5) The statement must be complete and consistent :-
If the deceased fails to complete the main sentence (as for instance, the
genesis or the motive for the crime), a dying declaration would be
unreliable. However, if the deceased has narrated the full story, but fails
to answer the last question as to what more he wanted to say, the
declaration can be relied upon; Kusa Vs. State of Orissa–AIR 1980 SC 559
A dying declaration ought not to be rejected because it does not contain
details or suffers from minor inconsistencies. Merely because it is a brief
statement, it is not to be discharged. Shortness, in fact, guaranteed truth.
Where the bride recorded two declarations, one to a police officer and other
to a Magistrate, they being similar in material factors, evidence accepted
though minor discrepancies were there; Raoji Vs. State of Maharashtra,
(1994) SC LJ 1 (SC).
5|Page
In Kamla Vs. State of Punjab – AIR 1993 SC 374, four dying declarations
were made by the deceased. One of them indicated the incident as an
accident. The accused (mother-in-law of the deceased) had been convicted
on the basis of another declaration implicating her. The court also found
glaring inconsistencies as far as naming the culprit was concerned. On
facts it was held that the conviction cannot be based upon such
declarations.
(6) Declarant must be competent as a witness :-
It is necessary for the relevancy of a dying declaration that the declarant,
if he had lived on, would have been competent witness. Thus, in a
prosecution for the murder of a child, aged four years, it was proposed to
put in evidence, as a dying declaration, what the child said shortly before
her death. The declaration was held to be inadmissible; R. Vs. Pike, (1829).
Need for corroboration
Where the dying declaration is believed to be true, consistent and coherent, it
can be relied upon for conviction, even if there was no corroboration.
In Lallubhai Devchand Shah Vs. State of Gujarat – AIR 1972 SC 1776, a married
woman was burnt to death by her in-laws, her dying declaration was accepted
and conviction was based solely on the basis of the declaration. It was held that
if the truthfulness of a dying declaration is accepted, it can always form the basis
of conviction of the accused. The Court, in the present case, thus convicted the
appellants on the basis of the dying declaration.
The Supreme Court observed that, dying declaration though an exception to the
hearsay rule, but like any other evidence, it has to pass the test of credibility. If
found reliable, it can be the basis of conviction.
6|Page
Evidentiary value of dying declaration
The general principle on which dying declaration is admitted is that, no one
would wish to die with a lie on his lips. Being the victim, dying man might have
been the only eye-witness to such time, his statement would be a piece of direct
evidence. Exclusion of his statement would tend to defeat the ends of justice. If
the truthfulness of a dying declaration is beyond doubt, the conviction can be
held solely upon it. State of Assam Vs. Mafizuddin Ahmed – AIR 1983 SC 274.
Circumstances when a dying declaration is meaningless
Following are the circumstances when a dying declaration held meaningless:
(i) When the relatives of the declarant arrange with him as to what he has to
say.
(ii) When the maker of a dying declaration is proved to have been unconscious
or semi-conscious at the spot and died a few minutes after the making of
the declaration.
(iii) Where there is clear discrepancy between the facts mentioned in the dying
declaration and those in the statements of the witness.
(iv) When a dying declaration contradicts itself in its various parts.
(v) Where the identity of accused could not be established through the dying
declaration.
Case Laws
Pakala Narain Swami Vs. Emperor Case:
The deceased, a former peon, had financial dealings with Pakala Narain Swami,
who was married to a daughter of the dewan of Pithapur. After facing financial
difficulties, the accused and his wife returned to Pithapur. The wife borrowed
Rs.3,000 from the deceased in 1936. On March 18, 1937, the accused invited
the deceased to Berhampur through a letter. The deceased left but never
returned, and on March 23, 1937, his dismembered body was found in a trunk
at Puri.
7|Page
During the trial, the deceased’s widow revealed that her husband had shown her
a letter stating he was going to Berhampur to receive payment. The Privy Council
deemed the widow’s statement relevant to the circumstances leading to the
deceased’s death. They emphasized the importance of circumstances having a
proximate relation to the actual cause of death, and in this case, the statement
indicated a transaction resulting in murder. The case highlights the significance
of statements made by the deceased in establishing a strong basis for conviction.
Khushal Rao Case
In Khushal Rao Vs. State of Bombay – AIR 1958 SC 22; the deceased made four
separate and identical declarations before the doctor, police inspector,
Magistrate, and to other person, stating that he has been assaulted by Kaushal
and one other person. The question was whether the accused could be convicted
only on the basis of this declaration or the declaration needed corroboration.
The Supreme Court, laid down the following principles :
(1) There is no absolute rule of law that a dying declaration cannot be the sole
basis of conviction unless corroborated.
(2) Each case must be determined on its own facts keeping in view the
circumstance in which the dying declaration was made.
(3) A dying declaration is not a weaker kind of evidence than any other piece
of evidence. It stands on the same footing as any other piece of evidence.
(4) A dying declaration cannot be equated with a confession or evidence of
approver, as it may not come from a tainted source. If it is made by the
person whose antecedents are as doubtful as in the other cases that may
be a ground for looking upon it with suspicion.
(5) Necessity of corroboration arises not from any inherent weakness of a
dying declaration as a piece of evidence, but from the fact the Court in a
particular case came to the conclusion that a particular declaration is not
free from infirmities.
8|Page
(6) To test the reliability of a dying declaration, the Court has to keep in view
the circumstances like the opportunity of the dying man's observation,
e.g., whether there was sufficient light if the crime was committed at night;
whether the capacity of the declarant was not impaired at the time of the
statement; that the statement has been consistent throughout if he had
several opportunities for making a dying declaration; and that the
statement was at the earliest opportunity and was not the result of
tutoring by the interested parties.
(7) A dying declaration recorded by a competent Magistrate in a proper
manner in the form of questions and answers, and in the words of the
maker as far as practicable stands on much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all
the infirmities of human memory and character.
(8) If the Court, after taking everything into consideration, is convinced that
the statement is true, it is its duty to convict, notwithstanding that there
is no corroboration in the true sense. The Court must, of course, be fully
convinced of the truth of the statement, and naturally, it could not be fully
convinced if there was anything in the surrounding circumstances to raise
suspicion as to its credibility. Thus, a true and voluntary declaration needs
no corroboration.
Nirbhaya case
Every person in India is aware of the horrendous crime that took place in Delhi.
A girl was brutally raped while she was travelling with her friend by six people.
Not only that but her intestines were ripped out of her body and there were some
serious injuries. In this case, when we talk about the Dying Declaration, dying
declarations were corroborated in material particulars with the help of medical
evidence, matching of DNA profiles which were generated from blood-stained
clothes of the accused, iron rod recovered, etc. In this case, the rape victim had
given three dying declarations.
9|Page
The first declaration was given by her to a doctor in the hospital, the second
declaration to a sub-divisional magistrate and the last was recorded by a
metropolitan magistrate which was given by the victim mainly through gestures.
The Apex Court of India considered all the dying declarations and found that
they all were consistent with each other. These dying declarations were not only
consistent with one another but also satisfied the test of probabilities and were
true and voluntary. The Court also went out to clarify that a dying declaration
need not only be in words or in writing, it can also be made by a gesture or by a
nod, what is necessary is that proper care should be taken at the time of
recording such statements which are made by gestures.
Therefore, when there are multiple dying declarations, it is to be noted that each
declaration has to be separately assessed and examined. After proper evaluation
of the dying declaration, its evidentiary value has to be assessed and at the end
all the dying declarations have to be studied and examined together in order to
understand their connection with each other.
Unnao rape case
In this case in the year 2017, a minor in Unnao district of UP was raped brutally
by BJP MLA Kuldeep Sengar, his brother and accomplices. The police didn’t even
let the family of the victim file an F.I.R. Then, after the incident one day, the
victim in front of the Chief Minister of UP Yogi Adityanath, attempted to immolate
herself. Then, the case came into light and the investigation began. In 2019,
the victim’s family was hit by a truck and caused the death of her two aunts and
the victim and her lawyer were in critical condition. Then, the case came to light
and the investigation began. The accused was sentenced to life imprisonment.
The dying declaration was given by the victim and was recorded by a sub-
divisional magistrate in the hospital. This was considered to be strong evidence
against the five accused who had raped and then burnt her ablaze.
10 | P a g e
