DYING DECLARATION AND EVIDENTIARY VALUE

What is Dying Declaration?: A DD is a statement, written or verbal, made

by a person before his death as to the cause of his/her death, or as to any of
the circumstances of that transaction which resulted in his/her death. DD
means the statement made by a person who had died explaining the cause or
circumstances of his death. For example, A has been assaulted by B or has
been attacked by B, and dies. A shortly before his death makes a declaration
holding B responsible for the injuries inflicted on him with spear. This
statement of A is admissible as it relates to the cause of his death as a DD at
the trial against B.

Underlying principle: The principle of admitting dying declarations in

evidence is based on the legal maxim nemo moriturus praesumitur mentire,
meaning a man will not lie to his maker. The grounds for admitting a dying
declaration are necessity, as the victim is usually the only eyewitness to the
crime, and extremeness when the sense of impending death produces the
same feeling as a conscientious and virtuous man under oath. The solemn
and serene situation on the deathbed allows the law to accept the veracity of
the statement, displacing the requirements of oath and cross-examination.

Section 32(1) incorporates the principle of English law relating to what is

popularly known as 'dying declaration'. Dying declaration is admissible in
evidence and constitutes one of the most important exception to the general
rule of evidence that hearsay evidence is no evidence in eye of law and it
should be discarded as a general rule because the evidence in all cases must
be direct. Section 32(1) makes admissible, the statement of a person who
dies provided the statement relates to the cause of death or deals with
circumstances leading death.

Section 32: Cases in which statement of relevant fact by person who is dead
or cannot be found etc., is relevant.

(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: (a) 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 she was ravished by B; or 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 the cause of his or her death, referring
respectively to the murder, the rape and the actionable wrong under
consideration, are relevant facts.

ESSENTIALS FOR THE RELEVANCY AND ADMISSIBILITY OF DYING

DECLARATION

The provisions of Section 32 are in the nature of exceptions. The burden of

establishing circumstances that would bring a statement within any of the
clauses of this Section lies upon the party who wishes to avail itself of the
statement. To avail of the provision of Section 32(1), the party/prosecution
must establish the following essentials:

(1) The declarant must have died: The person who made the declaration
must be dead. Section 32(1) applies to both, homicide as well as suicide. If
the person making a declaration chances to live, his statement is inadmissible
as a DD under Section 32(1), but it might be relied on under the provision of
Section 157, to corroborate his testimony when examined and also under
Section 155 for the purpose of contradiction or can be used as an admission
under Section 23, or is relevant/admissible as res gestae under Section 6.

(2) The declarant died of injury to be proved: When the deceased is not
proved to have died as a result of injuries received by him in the incident
where the deceased is said to have been killed, his statement cannot be said
to be a statement as to the cause of his death and thus is not admissible. In
Moti Singh . State of UP, AIR 1964 SC 900, one G received gunshot injuries. He
was admitted into a hospital. His declaration was recorded. He went out of the
hospital and afterwards died. It was not proved that he died of the injuries
received at the incident. His evidence did not amount to dying declaration
and was excluded.

(3) The cause of declarant's death must be in question: The declaration

of death (DD) is relevant only in a proceeding where the cause of the
declarant's death is in question, whether civil or criminal. In a suit for
damages from a railway accident, the statement of the deceased as to the
cause of his death is admissible. Section 32(1) uses "his death" to indicate
that the declarant's death is in question. In Kantilal v. State of Gujarat, AIR
2013 SC 3055, the SC ruled that statements made by the deceased in her
letter to the Police cannot be considered proof of cruel ad committed by her
husband. Therefore, the cause of the declarant's death must be brought into
question.

(4) Statement must relate to the cause of his death or the

circumstance of the transaction which resulted in his death: Section
32(1) of the Criminal Procedure Code permits two types of statements:
statements about the cause of a person's death or statements about the
circumstances leading to their death. The admission of facts as relevant facts
is limited, as the death should have been caused by the same injury as
revealed in the dying declaration. For instance, if a person claims they were
assaulted and died before their death, their statement related to the cause of
their death is admissible. If the deceased claimed to have been injured by
someone but died of an illness, their statement claiming X caused their
injuries cannot be admitted.

In Sudhakar v. State of Maharashtra, the prosecution's statement was

recorded after 11 days, but she committed suicide after 5½ months. The
court ruled that the statement cannot be considered a wrongful death (DD) as
there was no reliable evidence linking the accused to the crime, and the
conviction was set-aside.
In Patel Hiralal v. State of Gujarat, the Supreme Court ruled that the term
"statement as to any circumstances" can broaden the admissibility scope,
especially when linked to the transaction leading to the deceased's death.
This sub-section covers anything proximate, remote, direct, or indirect that
has a connection to the deceased's death.

(5) Declaration must be complete and consistent: A DD must be

complete from the point of view of the declarant. If he had said all that he
wanted to say, it would be relevant. But it happens that after making some
statements he is about to state something more when he becomes
unconscious and dies, the statement would be an incomplete DD and
therefore will not be relevant.

In Abdul Sattar v. State of Mysore, AIR 1956 SC 168, it has been held that if
the statement though incomplete in the sense that the declarant could not
state all what he wanted to state, yet whatever he stated is complete in
respect of a certain fact, the statement would not be excluded on the ground
of its being incomplete.

(6) Declarant must be competent and in a fit condition: It must be

shown that the declarant was a competent witness in terms of Section 118.
IEA and was in a fit state of mind to make the DD, that the declarant was
conscious of the surroundings and of the person who attacked him.

FORM OF DYING DECLARATION

There is no particular form to be employed in making a DD. It may he seal or

in writing, or may even be partly oral and partly in writing. On the hother
hand, it may be neither oral nor written, that is to say, it may consist of some
signs or gestures made by the deceased. There must, however, be a definite
and distinct assertion on the part of the maker.

The Queen Empress v. Abdullah case established that a Defendant's

Deposition (DD) must make a definite and distinct assertion, such as the
victim's signs and gestures, to be admissible under Section 32(1). The Privy
Council emphasized that other evidence is not sufficient for conviction, but a
clear and unmistakable statement is essential.
In Laxman v. State of Maharashtra, the Supreme Court ruled that a Death
Declaration (DD) can be oral or written, as long as the indication is positive
and definite. Most DDs are made orally before death and recorded by
someone like a Magistrate, doctor, or police officer. There is no law requiring
a DD to be made to a Magistrate, and no specific statutory form exists when
recorded.

EVIDENTIARY VALUE OF DYING DECLARATION

Sanctity of dying declaration: Section 32 of the Criminal Procedure Code

(CPC) places a death deposition (DD) on par with oath evidence due to the
risk of lying during a man's imminent death. The DD is made in a solemn and
serene state, allowing the court to accept the veracity of the statement. The
requirements of oath and cross examinations are dispensed with, as the
victim is typically the only eyewitness in a serious crime. Excluding a DD
would result in miscarriage of justice, leaving the court without any evidence.
The legal maxim nemo moriturus praesumitur mentiri, meaning a man will not
meet his maker with a lie, requires due weight to a DD.

Factors affecting sanctity of DD (Inherent weakness): The legislature

has a special sanctity for a dying person's statement about the cause of
death, which should be respected unless clear circumstances show the person
was not in expectation of death. However, a Death Declaration (DD) cannot
be solely convicted without further corroboration due to its shortcomings,
such as not being subject to cross-examination, being extreme, and the
declarant taking advantage of the last opportunity to implicate all enemies.
Additionally, a DD may be unreliable if not made at the earliest opportunity or
if the statement was not properly recorded. Therefore, DD must be subjected
to close scrutiny in all relevant circumstances.

Precautions to be taken while using DD: While weighing the evidence of

DD and relying upon it as a clinching piece of evidence, the Court must take
into consideration the following factors: (i) That it was made shortly after the
assault when there was no opportunity of it being coloured by Impressions
received from others: (ii) That the deceased had ample opportunity of
observation; (iii) That the incident happened in a sufficiently lighted place;(iv)
That the deceased was not under any fear or pressure at the time of making
the statement; (v) That it was recorded by a competent magistrate after
taking all proper precautions; (vi) That it was taken down in the exact words
in which it was spoken; and (vii) That the deceased had made more than ot
statement and all of them were consistent as to the circumstances of thy
occurrence and the identity of the attackers.

In Laxman v. State of Maharashtra, (2002) 6 SCC 710, The Supreme Court

(SC) has emphasized the importance of careful consideration of evidence, as
it can be influenced by various circumstances. The court emphasizes that the
evidence should inspire confidence in the court, and must ensure the
deceased's statement was not influenced by tutoring, prompting, or
imagination. It also needs to determine if the deceased was in a fit state of
mind and had the opportunity to identify the assailant. This caution is crucial
in determining the truthfulness of evidence.

Requirement of corroboration of DD: (DD) is a crucial document in

criminal law, but it is essential for the court to ensure its accuracy and not be
influenced by any extraneous considerations. The court must rule out the
possibility of the statement being a result of tutoring, prompting, vindictive,
or imagination. Before relying on a DD, the court must ensure the deceased
was in a fit state of mind to make the statement. Once the DD is true,
voluntary, and not influenced by any extraneous considerations, the court can
base its conviction without further corroboration.

In Kushal Rao v. State of Bombay, AIR 1958 SC 22, the Supreme Court ruled
that there is no absolute rule of law that a Defendant's Declaration (DD) must
be corroborated by other independent evidence. The court argued that the
necessity for corroboration is not due to inherent weaknesses in a DD as
evidence but rather because courts doubt its veracity and conclude that a
declaration is not free from infirmities. If the court is convinced that the
statement is true, it is their duty to convict, even if there is no corroboration
in the true sense.

DD is a substantive evidence and can form the basis of conviction:

DD like any other evidence has to be tested on the touchstone of credibility in
order to be acceptable. If the truthfulness of a DD is accepted, it can always
form the basis of conviction of the accused, and if a DD is acceptable as
truthful event in the absence of corroborative evidence, court may act upon it
and convict. A truthful, coherent and consistent DD need no corroboration and
conviction may be based on it. Thus, if the DD passes the test of scrutiny, it
can be relied on as the sole basis of conviction.

In Jaswant Singh v. State, AIR 1979 SC 190, the SC observed: "In order to pass
the test of reliability, a DD has to be subjected to a very close scrutiny,
keeping in view the fact that the statement has been made in the absence of
the accused who had no opportunity of testing the varacity of the statement
by cross-examination. But once, the Court has come to the conclusion that
the DD was the truthful version as to the circumstances of the death and the
assailants of the victim, there is no question of further corroboration and the
DD can form the basis of conviction."

Narration of whole incident is not necessary: The court must assess the
evidentiary value of a Defendant's Deposition (DD) by presenting the entire
statement of the deceased without tampering with its terms or tenor. The DD
maker doesn't have to cover the entire incident or narrate the case history.
The victim may only say they were beaten by certain people, which may be
due to the suddenness of the attack, visibility, or the victim's inability to
recapitulate the entire incident.

In Munnu Raja v. State of MP, AIR 1976 SC 2199, the SC observed: "In fact,
many a time, DD which are copiously worded or neatly structured, excite
suspicion for the reason that they bear traces of tutoring."

Discrepancy in dying declaration: DDs have to be dealt with duę care and
admitted as evidence only upon proper circumspection.

In Kishan Lal v. State of Rajasthan, the court ruled that a deceased woman
could not mention the names of the accused in an oral DD made before her
relatives due to eye darkness. The DD provided conflicting versions and inter-
separate depositions of witnesses supporting it. The court ruled that the
conviction cannot be based on such DDs, as they were inconsistent and
contradictory.

Dying declaration made to near relatives: A DD made to the elatives of

the deceased, when properly proved can also be trusted.

In V.S. More v. State of Maharashtra (AIR 1973 SC 519), a DD was made by

the deceased against his own son, was held to be one on which the court
could proceed to convict. The court observed that even though there was
some enmity between the father and the son yet if the son was not the real
assailant it would
have been most unlikely that his father would in his dying moment try to
falsely implicate his own son."

Dying declaration recorded by a Magistrate: A DD which has been

recorded by a competent Magistrate in a proper manner, that is to say, in the
form of questions and answers, and as far as practicable in the words of the
maker of the declaration, stands on a much higher footing than a DD which
depends upon oral testimony which may suffer from all the infirmities of
human memory and human character.

FIR as DD and statements recorded by police: Technically, a DD

recorded by police alone is relevant under Section 32(1), IEA by virtue of the
saving of such statements under Section 162(2), CrPC but even so In State of
Punjab v. Amarjit Singh, AIR 1988 SC 2012, a declaration noted down by an
ASI even before any FIR was lodged was held by the SC to be acceptable as in
the circumstances of the case, the Court was failed to find any fault in the ASI
in not getting the statement recorded by a Magistrate. No reason was
available to doubt the correctness and authenticity of the DD.

Conclusion: The law does not prescribe a specific method for recording a DD
so the value of a DD depends on the specific facts and circumstances of each
case. The authenticity of a DD is judged based on various factors that vary
with each case. The value of a DD is closely linked to the circumstances of
each case, and it must be judged based on surrounding circumstances and
the principle governing evidence weighing. There is no hard and fast rule for
when a DD should be accepted, but if the court is convinced that the
statement is true, it is their duty to convict, even if there is no corroboration.
The court must be fully convinced of the statement's truth, and it cannot be
fully convicted if there are suspicions about its credibility in the surrounding
circumstances.