THE LEGALITY OF DYING DECLARATION
Updated: Jan 1, 2021
Author: Ragini Rathore, V year of B.A.,LL.B. from Law faculty, Agra college, Agra
The tenacity of this study is to recognize the term ‘Leterm Mortem’. This tenure has a legal worth meaning thus words told before the death. In mutual legal language, it is called a dying declaration. In this whole project, I'll be telling the important questions which are related to the dying declaration.
What a dying declaration means is a declaration of a person who had died to clarify the conditions of his death. In other words, a declaration made by a person who is mindful who knows that his death is forthcoming and if he trusts something to be the reason office death can be presented into evidence during the trial in definite cases. A dying declaration is measured to be reliable and trustworthy evidence-based on the overall belief that a person who is on his deathbed will never lie. It is based on the principle nemo mariturus presumuntur mentri meaning a man will not meet his maker with a lie on his mouth.
Keywords: Dying Declaration, Conviction, Admissible, Relevant, Statement, Deceased
A declaration by a person who is mindful and distinguishes that demise is looming regarding what he or she trusts to be the cause or conditions of death that can be presented into indication throughout a trial in convincing cases.
A dying declaration is a measured trustworthy and dependable sign based upon the over-all faith that most people who are about to die do not lie. It is an exception to the HEARSAY law, which always stops the use of a declaration made by a person other than the person who is repeating it during a trial, because of its intrinsic undependability. If the person who completes the dying declaration had the smallest amount of hope of salvage, no matter how irrational, the statement is not allowable into indication. A person who brands a dying declaration must, yet, be knowledgeable at the time he or she makes a declaration, then, it is prohibited.
A dying declaration is typically introduced by the prosecution but can be recycled on behalf of the accused.
Is corroboration mandatory?
The Supreme Court detained in Ashabai v State of Maharashtra[i] that the law does not claim upon the validation of a dying declaration before it can be acknowledged. The persistence of legalization to a dying declaration is only a rule of carefulness. When the court is pleased that the dying declaration is charitable, not contaminated by tutoring or hostility, and is not a creation of the imagination of the declarant, in that event, there is no impairment in sentencing the suspect on the foundation of such dying declaration. Each dying declaration has to be unconnected measured and estimated on its worth when there are several dying declarations as to its evidentiary charge, and one cannot be forbidden because of assured variables in the other, the Supreme Court had held.
When a dying declaration is recorded voluntarily, under a fitness report of a certified doctor, nothing much remains to be questioned unless it is proved that the dying declaration was tainted with animosity and a result of tutoring. Particularly when there are various dying declarations, slight differences do not distress the evidentiary worth of other dying declarations whether recorded previous or following thereto, the Supreme Court held.
A dying declaration is a statement made by a declarant, who is unavailable to testify in court (typically because of the declarant's death), who made the statement under a belief of certain or impending death. The statement must also relate to what the declarant believed to be the cause or circumstances of the declarant's impending death.[ii]
What is the Dying Declaration?
Section 32(1) in The Indian Evidence Act, 1872 says that “Cases in which a statement of relevant fact by a person who is dead or cannot be found, etc., is relevant.”
1. When it relates to cause of death-
When the declaration is made by a person as to the reason of his death or as to any of the conditions of the matter which resulted in his death then this statement is applicable under section 32 clause 1.[iii]
There can be two kinds of statements-
1. One which relates to the exact cause of his death or the transaction leading to his death so this statement becomes relevant.
2. The other one relates to the circumstances of the transaction which resulted in death.
Whether Expectancy of Death Required
Section 32(1) provides that 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.
In India, the expectancy of death is not essential however, it is necessary for England.
In England, more significance is given to the principle of Nemo Moriturus Presumuntur mentri.[iv]This maxim means that no one will meet his maker with a lie in his mouth and it should be presumed that who is making the statement at the time of his death is not lying and this maxim has much more significance in England because they expect a dying declaration to be made by a person who is expecting death.
Types of Proceedings It May Be Relevant In
Section 32 clause one answers this as it provides whether maybe the nature of the proceedings in which the clause of his death comes into question. This means that the dying declaration may be utilized in civil as well as criminal proceedings and is not limited to only criminal proceedings.
The Basis of Relevancy of Dying Declaration
These kinds of statements would otherwise be irrelevant as they would fall in the category of Hearsay Evidence.
But section 32(1) carves out an exception by making these dying declarations relevant so the court can take these into account while deciding a matter.
The Right Circumstances Dying Declaration is Very Strong Evidence.
When the circumstances are right so it can be the sole ground of conviction. The reason for this is that the presumptions there that the person gave the statement spontaneously and without fabrication and since cross-examination cannot be done after death the doctrine of necessity, requires dying declaration to be utilized as-is.
Essentials of Section 32(1) of Indian Evidence Act
There are some essentials of section 32 clause 1 which are as follows:
1. A statement may be oral, written, or told by conduct to be relevant as a dying declaration.
2. The statement must be as related to:
3. Cause of Death
4. Circumstances of the transaction
5. Resulted in the death
6. The cause of the death of the deceased must be in question.
7. The expectancy of death is not necessary.
8. Whatever may be the nature of proceedings- it may be civil/criminal nature where the death of the person is in question.
The Comparison between the English Law and Indian Law
Under English law, it is essential/to the admissibility of dying declaration that the declarant must expect death.
Under Indian law, it 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 is it restricted to the case of homicide only.
Admissibility of Dying Declaration
1. The dying declaration should be acted upon with corroboration.
2. If the court is satisfied that the dying declaration is true and voluntary, it can be the sole base of conviction, without corroboration.
3. The court must examine the dying declaration and must confirm that the declaration/is not the outcome of teaching, warning, or thoughts.
4. Where a dying declaration is suspicious it should not be acted upon without corroboration evidence.
5. Where the dead was comatose and could not make any dying declaration, indication about it is to be forbidden.
6. A dying declaration that suffers from any kind of infirmity cannot form the basis of conviction.
Can FIR be Admissible as a Dying Declaration?
Where a hurt person filed the FIR and then expired. It was held in K.Ramachandra Reddy vs. Public Prosecution, it is to be relevant as a dying declaration.
Who can Record the Dying Declaration?
A dying declaration can be recorded by any person, even by a police officer, but it is recorded by a judicial magistrate, it will have more strength and reliability.
LORD EYRE, C.B., held that “The principle on which this species of evidence is admitted is, that they are declarations made in extremity when the part is at the point of the oath, & when every hope of this world is gone; when every motive of falsehood is silenced, & the mind is induced by the most powerful consideration to speak the truth; a situation so solemn & awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice.”
Thus, a Dying declaration is one of the most significant pieces of evidence that is permissible in the courtroom as a dying declaration can be the sole reason for the belief of the accused. Hence, it must be recorded carefully with all the methods that the court has cited. It should not interfere at all via anyone. If the dying declaration is imperfect, then it is very much to be disallowed through the court. It is on the court's pleasure to check if the dying declaration is recorded carefully or not.
1. Emperor Vs Mohammad Shaikh 1942, Cal. 144
2. Ashabai&Anrvs State Of Maharashtra on 4 January, 2013
4. Queen Empress v. Abdullah (1885) ILR 7 All 385
5. SurajdeoOjha&Ors. v. State of Bihar AIR 1979 SC 1505,