Updated: Feb 8
Author: Chetna Priyam, II year of B.A., LL.B. (Hons.) from ICFAI Law School, ICFAI University, Dehradun
The dying declaration is a statement which is made by a person who explains the situations and circumstances of his or her death. It may be made orally or in written form. Clause (1) of Section 32 of the Indian Evidence Act 1872 says:
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 the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
So, we can infer the following points relevant to the dying declaration:
· The statement may be oral and written. In the case Emperor v. Abdullah[i]; it was held that the conduct must be relevant to the dying declaration so made.
· The statement must be as to:
- cause of death
- circumstances of the transaction
- resulted in the death
This all is based on a legal maxim – ‘Nemo moriturus praesumitur mentri’. It means that a person will not meet his or her maker with a lie on his or her mouth. Here arise certain questions concerning the evidence. It is so because the person who would be making such a statement would not be present himself or herself to explain what the actual circumstances were. Also, as that particular person is not present, his or her cross-examination is not possible by the alleged person i.e., the accused. Section 32 (1) of IEA mentions an exception to this general rule. It doesn’t require oral evidence to be direct.
We can say that a dying declaration is a statement made by a person stating his or her cause of death or explaining the relevant circumstances. If that person is likely to live, the declaration so made will be treated as inadmissible. But if examined, the declaration might be relied upon as per Section 158 of the IEA 1872 to verify the testimony.
In the case, Ulka Ram v. State of Rajasthan[ii]; the court held that when a person makes a declaration stating the purpose of his or her death or situations which resulted to his or her demise and later, any question arises regarding the purpose of such death then, that statement is known as dying declaration in a condensed form.
PRE-REQUISITES OF A DYING DECLARATION
· Such a person who makes such evidence must do it voluntarily and consciously. It also means that the person should be in a fit state of mind.
· Presence of a Magistrate (depending on the case’s facts & circumstances) is essential while recording that evidence.
· The declaration should only be made when the person apprehends that his or her death is menacing.
· The declaration should be authentic, truthful and trustworthy.
· The statement should not be under someone’s directions or assistance.
· The dying declaration should be treated as a substantive piece of evidence and is required to be certified with all other relevant shreds of evidence.
· If the facts and circumstances of a particular case are so, then a sole conviction may be based on the declaration made.
· It’s the discretion of the court that what value will it attach to the dying declaration.
· Such declaration is important only in cases in which the person who made that declaration has died and his or her cause of death is in question.
· It is essential that the statement so recorded, be it oral or written, should be treated as a dying declaration. Here the person must have no faith in recovery.
RECORDING FORMAT OF A DYING DECLARATION
- In general, the declaration should have the credibility of a doctor. Otherwise, it may be displayed as a suspected one. It doesn’t require to be recorded only in the presence of a Magistrate. There’s no hard and fast rule regarding this.
- The statement may be in the form of a narration or a form of questions and answers.
But these all are not a prescribed form or procedure that must be followed for a dying declaration to be valid. What is required, has been mentioned in its requisites.
-In the case State of Kerala v. Shariff[iii], the court held that just because the declaration is not in a question-answer based format doesn’t mean that it is not a valid one. The court also held that the statement was in narrative form and that’s a more realistic form. It gives the natural version of the points mentioned by the person.
- In the case Biju Joseph v. State of Kerala[iv], it was held that there is no determined language for the declaration to be recorded in. If the deceased has recorded it in his language then it would not make the statement invalid.
WHO CAN RECORD A DECLARATION?
Rule 33 of Criminal Rules of Practice, this power lies with the Judicial Magistrate. But it’s not essential. The declaration may be recorded by a judicial magistrate, a police officer, a doctor, or even a village head. One point should be taken into consideration here that if it has been recorded by the judicial magistrate then it will have more reliability and strength.
In the case Ram Singh v. Delhi Administration[v], the Delhi High Court held that just because a dying declaration has been recorded by a police officer, its authenticity cannot be questioned and that declaration is a valid one.
REQUIRED FITNESS OF DECLARANT
As mentioned, it is one of the essentials of a dying declaration that the one who is making such a statement is in a fit state of his or her mind. For the same to be fulfilled, it is mandatory to procure a certificate from the doctor, through which it can be assured that the declarant is mentally fit.
It should be kept in mind that this is not a rule that must be followed. There are cases where it becomes difficult or impossible to get such a certificate. In those cases, the dying declaration won’t be considered as unacceptable.
The crux is that the statement should be authentic and trustworthy. In Jai Karan v. State (NCT) Delhi[vi]; a doctor had recorded the statement but hadn’t read it to the deceased. Also, the signature or thumb impression of the deceased wasn’t taken. It was stated that the deceased was not in such a condition to make any statement. Hence, the dying declaration was not trusted upon.
WHAT IF MORE THAN ONE DECLARATION PRESENT?
If more than one declaration is present then, those are taken as one for the proper appreciation of its credit. If possible, then attempts must be taken to reconcile the statements.
In certain cases, it happens that two declarations differ from each other. In such cases, attempts must be made to reconcile them. If the point of difference can’t be explained then the declarations are considered to be unfit for credit. On the other hand, if the difference is explained, the credit is given.
If the question of preferring any one declaration arises, then the one made before the subsequent should be favoured.
In Gangaram Gehani v. State of Maharashtra[vii], it was held that when two declarations are consistent with each other, then the court shall not persuade one taking it to be sufficient.
IS IT VALID TO TREAT F.I.R. AS DYING DECLARATION?
It doesn’t generally happen that a person dies immediately after lodging the F.I.R but if such an incident takes place, the character of the F.I.R. needs to be dwelled into properly.
In the case Dharma Pal v. State of U.P.[viii], the court stated that F.I.R. can be given the position of a dying declaration if the victim’s death takes place before his or her examination in the court.
In Munnu Raja & Anr. v. State of M.P.[ix]; the statements that were given by the deceased and which was recorded as F.I.R. was considered to be his dying declaration and was given the status as per Section 32 of IEA.
The relevant F.I.R. might be relied upon under Section 157 to support his or her testimony or to contradict as per Section 145. As per Section 6 and 8, the statement can be used to support the evidence.
SITUATION WHERE THE PERSON MAKING THE STATEMENT SURVIVES
A statement can be said to be a dying declaration only and only if the considered person dies. In the case, Ramprasad v, State of Maharastra[x], the SC held mentioned that if a person survives in such cases then, his or her statement won’t be treated as a dying declaration under Section 32 of IEA. But still, that statement will be treated as a declaration as per Section 164 of CrPC. The SC also said that it should be noted that while making the statement, the declarant is required to be under the situation which comes under the exception of death.
INDIAN LAW VS ENGLISH LAW W.R.T. DYING DECLARATION
The English Law says that to consider a statement as a dying declaration of a person, the Judge must be satisfied with the point that when the declarant was making the statement, he or she should have the real danger of death or its complete apprehension. This is the base of English law which relates to the dying declaration.
On the other hand, Indian Law puts no such limitation. What needs to be proved is that the declarant is dead before the admissibility of the statement. In the case where the declarant survives, that declaration can be used to support or refute his or her contentions.
The term ‘dying declaration’ has not been specifically mentioned in the Indian Penal Code under Section 32(1). A dying declaration can be viewed as a statement made by a person who has the apprehension of his or death to be nearest. It is considered as a shred of evidence in the court of law. There are certain prerequisites of a dying declaration as mentioned in the paper, like- the person making it should have done it voluntarily and consciously. The concept of dying declaration is admissible in the Indian law because it is believed that one who is dying, won’t lie. This is so because while he or she is dying, then all expectations come to an end. But it is also a point to be noted that if such a declaration is found to be done maliciously, then it can be rejected by the court.
[i] 1949 CriLJ 693
[ii] 2001 Cri.L.J. 1821 : [2001 ALL MR (Cri) 1215 (S.C.)]
[iii] 2003 CrLJ (SC)
[v] 1995 Cr.L.J. (Delhi)
[vi]  INSC 370
[vii]  INSC 23
[viii] (2008) 17 SCC 337
[ix] 1976 AIR 2199
[x] 1999 SCC(Cr) 651
Chetna Priyam is a law student. She is currently pursuing the 5th year integrated course of BA- LLB (Hons.) from the ICFAI University, Dehradun. This is her 2nd year and she is very much interested in writing articles, case comments and research papers. Not having any of her family members in the law field, she didn't have much idea about the writing scope of this field but now, she always looks forward to these kinds of opportunities. In her opinion, words express you in a very different way which nothing else can.