A Project Report on

Relevancy and Admissibility of Dying Declaration

Project submitted to:

Ms. Apurva Verma

(Faculty of Law of Evidence)

Project Submitted by:

Rohit Dongre

Semester VII, Section B

Roll no. 132

Submitted on:

16.08.2016

Hidayatullah National Law University, Naya Raipur Chhattisgarh.

 Declaration

I hereby declare that the project work entitled Relevancy and Admissibility of Dying
Declaration submitted to Hidayatullah National Law University, Raipur, is record of an
original work done by me under the able guidance of Ms. Apurva Verma, Faculty of
Law of Evidence, HNLU, Raipur.

Rohit Dongre

Semester- VII

Section B

Roll no-132

2
 Acknowledgements
I feel highly elated to work on the topic entitled Relevancy and Admissibility of Dying
Declaration The practical realization of this project has obligated the assistance of many
persons. I express my deepest regard and gratitude for Ms. Apurva Verma, Faculty of
Law of Evidence. Her consistent supervision, constant inspiration and invaluable
guidance has been of immense help in understanding and carrying out the nuances of the
project report.

I would like to thank my family and friends without whose support and encouragement,
this project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful
to receive comments and suggestions to further improve this project report.

Rohit Dongre

Semester- VII

3
 Section B

Roll no-132

Contents
Declaration
Acknowledgements
Introduction
Objectives
Scope of Study
Research Methodology
Sources of Data
Tools of data collection
Organization of study
Part I- Essentials of Dying Declaration
What happens if the dying declaration is incomplete?
Types of dying declaration
Dying declaration has to be made in a fit state of mind
To whom the dying declaration must be given?
Part II - Admissibility of Dying Declaration
Distinction Between Indian and English law regarding Dying Declaration:
Sense of Impending Death
Scope of Application
Part III- Evidentiary Value of Dying Declaration
Conclusion
References

4
 Bibliography
Webliography

Introduction
The maxim Nemo moriturus praesumitur mentire is basis for ''dying declaration'',
which means '' a man will not meet his maker with a lie in his mouth''. A dying
declaration is called as ''Leterm Mortem''. The word '' Leterm Mortem'' means '' Words
said before death''. Recording of dying declaration is very important task. Utmost care is
to be taken while recording a dying declaration. If a dying declaration is recorded
carefully by the proper person, keeping in mind the essential ingredients of the dying
declaration, such declaration retains its full value.

Section 32(1) of the Indian Evidence Act is an exception to the principle that excludes the
hearsay rule. 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.1 The
custom of using dy-ing declaration probably comes down as a tradition long before the
evidence system arises in the 1500s.
Principle behind the concept of dying declaration is that the person having the first hand
information about a particular matter, however due to death or any kind of disability is

1
AshutoshSalil, An Analysis of Indian and English Position of Dying Declaration J 297,Cri.L.J.2005.

5
unable to appear before the court, then his/ her knowledge/ information should be
transmitted to the court through some other person . This Section plays a significant role
when the person having a particular knowledge is sought to be proved died or cannot be
found or due to any reason his attendance cannot be procured in the Court.
The statement made can be verbal/ oral connected to the circumstances of transaction that
resulted 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 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.

Objectives
The Specific Objectives of the research work are-

To understand the Concept of Dying Declaration and Essentials of Dying

Declaration
To study Admissibility of Dying Declaration
To study Evidentiary Value of Dying Declaration

Scope of Study
The Research work covers mainly the Dying Declaration in India context and its concept
its admissibility, evidentiary value and some comparison with English Law and with
help of case study.

6
 Research Methodology
This Research Project is Descriptive in nature as it uses descriptive language for the
explanation of various topics and subjects discussed in this project.

Sources of Data
Secondary data has been mostly used in the making of this research project, which
includes Web sources, including reports and data analysis and studies carried out by
people in their field work in different states etc.

Tools of data collection

The data so used in the making of this Research work has been collected mainly from
web sources.

Organization of study
The Research Work has been divided into Parts, which are further divided into Sub-parts.

Part I- Essentials of Dying Declaration :-

Dying declaration is provided by section 32, sub-section 1 , of the Indian Evidence Act .

According to this section, Dying Declaration is the declaration of a dying person as to the
cause of his death or as to any of the circumstances of the transaction which resulted in
his death when the cause of his death is in question .

If the Declarant survives after making the Dying Declaration, the statement is
inadmissible as Dying Declaration but the statement can be used under Section 158 of the
Indian evidence Act, in order to contradict , corroborate , impeach or confirm the credit
of the person by whom it was made .
7
In case of survival of the Declarant, he can also be cross examined on the Dying
Declaration as previous statements made by him in writing or reduced into writing, and
relevant to matters in question under Section 145 of the Indian Evidence Act .

If the declarant succumbed to the injuries, the statement can be used as a dying
declaration as to his cause of death.

What happens if the dying declaration is incomplete?

In case of an incomplete dying declaration, where the person dies before completing the
declaration in that situation the said statement cannot be taken into consideration hence
the same would be inadmissible in the eyes of law. However, if the person made
incomplete statement but have made the declaration about the cause of his death and has
revealed that who is the accused/ offender. In that case the question of incomplete
declaration would not come into the question; otherwise the sole purpose of the dying
declaration will go in vain.

Even if the declarant fails to answer some of the questions asked and has made the
relevant statement that has caused his death would be considered relevant and admissible
before the Court. In Abdul Sattar Vs. State of Mysore the court held that however the
dying declaration was not complete, but as far as the accused have shot the deceased is
concerned, the said declaration could certainly be relied upon.

Types of dying declaration

There is no specific guideline or parameter to define the admissibility of a dying declaration; it can be
verbal/ oral or written. It can be partly oral or partly written, at times it can be recorded when the
declarant uses gestures or signs to give dying declaration, it can be in the form of question and answer.
Even if the dying declaration is made in vernacular language and the same is recorded/ translated in
English language, the same is considered admissible before the court of law. The declaration made

8
orally must be taken with due care and caution. The Supreme Court held that dying declaration must
be scrutinized minutely with a microscopic eye to make it admissible. Usually time limit is not
taken into consideration; there are cases where dying declaration is considered admissible
made 4 months prior to death.

In Ranjit Singh Vs. State of Punjab the deceased had written a letter to his brother
mentioning that his relationship was not cordial with his wife and he has apprehended
dragger of his life from his wife. These letters were written by the deceased five years
prior to the incident sought to be proved. The court held that the letters are admissible as
dying declaration as they alleged of the circumstances that brought about his death.

The only object to make it admissible is that the ends of justice must not be defeated.
Where the victim is about to die/ already dead or there is no other eye witness or even if
there are some they might not come forward after the death of victim, in that situation the
statement of the victim plays a very evident role. The grounds of admissibility of
statement are the death of the declarant and the presumption that before dying the person
would state the truth. Supreme Court has held that conviction solely on dying declaration
is valid.

Dying declaration has to be made in a fit state of mind

State of Tamil Nadu vs Karuppasamy In this case it was held by the apex court that it would be
improper to reject the dying declaration merely on the ground that the maker is not fit, solely based on
the certificate of the doctor and where the Magistrate did not enquire independently that the deceased
was in a fit state of mind or not at the time the dying declaration was made.

The court must be satisfied that the deceased was in a fit state of mind to make the statement after the
deceased had a clear opportunity to observe & identify his assailants & that he was making the
statement without any pressure or malice. It is perfectly permissible to reject a part of dying
declaration if it is found to be untrue and if it can be separated.

9
Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found
the conviction even without further corroboration.

To whom the dying declaration must be given?

a) Best form of dying declaration would be the one that is recorded by the Magistrate.

b) However as per the Supreme Court guidelines anybody can record dying declaration.
A bench of Justices BS Chauhan and Dipak Misra The law on the issue can be
summarized to the effect that law does not provide who can record a dying declaration,
nor is there any prescribed form, format or procedure for the same,.

c) Dying declaration can also be recorded by public servants, or by a doctor as well,

where the victim is hospitalized and is badly burnt or injured and wants to make a
statement, the doctor can also record the same and make note of that statement. A person
having 100% burns can make a statement, and a certificate provided by a doctor is not a
condition precedent for placing reliance upon a dying declaration.

d) It can also be made to a relative or a family member and the same plays an admissible
role in the eyes of law.

e) Courts discourage the recording of dying declaration by the police officers but if there
is nobody else to record it, then the dying declarations written by the police officers are
also considered by the courts.

f) If the statements are not recorded by the magistrate then in that case to make it
admissible, it is better that signatures of the witnesses are taken who are present at the
time of recording the dying declaration. It is important that when the declarant is giving
the statement, he must be in sound state of mind

10
Part II - Admissibility of Dying Declaration :-
The concept of dying declaration is based on the Maxim nemo morture praesumntur
mentiri which means that the person who is about to die would not tell lie. The necessity
of relying on the dying declaration is that

a) victim being the sole eye witness of the crime committed,

b) the statements made by a person who is about to die would be nothing but just truth.

These are the two principles on which the concept of admissibility of dying declaration it
is based upon.

Section 60 of the Indian Evidence act says that the oral evidence must be direct . And the
rule of law is that hearsay evidence , which is not direct , is not admissible . Dying
declaration is a kind of hearsay evidence but it is admissible as an exception to the
general rule that hearsay evidence is not admissible .

Dying declaration is made admissible on the principle that truth sits upon the lips of a
dying man . It has been well reasoned in the literature by Shakespeare , in Richard II , by
the following words

Where words are scarce , they are seldom spent in vain,

They breathe the truth and breathe their words in pain .

11
The general principle on which the dying declarations are admitted in evidence is that
they are declarations made in extreme conditions , when the party is at the point of death ,
and when every hope of this world is gone , when every motive to speak falsehood is
silenced , and the mind is induced by the most powerful considerations to speak the truth
, a situation so seldom 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 .

The rules for admissibility of dying declaration in India are contained in section 32 (1) of
the Indian Evidence Act 1872[12]. It is a statement written or oral of a person who is
dead and the same is with respect to the cause of his death or the circumstances resulting
in his death. The statement is relevant in any judicial proceedings where the cause of
death of that person is in issue. The second Para of the sub section makes it abundantly
clear that the statement is admissible in civil as well as criminal proceedings and it is not
necessary that the Person making the statement should be apprehending death at the time
of making the statement Thus, it may be noted that, the Indian law as to admissibility of
dying declaration makes a departure from the English law inasmuch as it is not limited to
the cases of homicide and the restriction of expectation of death has not been recognized.
The declaration is admissible irrespective of whether the declarant was in the danger of
impending death at the time of making the statement. Thus, the basis which has been
considered to have taken the place of Oath and ensuring the truthfulness of the statement
has not been made a condition for its admissibility.

The court is under an obligation to closely scrutinize all the pros and cons of the
circumstances while valuating a dying declaration since it is not a statement made on oath
and is not tested on the touch stone of cross- examination. In Ram Nath v. State of
Madhya Pradesh2 the Supreme Court has held that: It is settled law that it is not safe to
convict an accused person merely on the evidence of a dying declaration without further

2
AIR 1953 SC 420.
12
corroboration because such a statement is not made on oath and is not subject to cross-
examination and because the maker of it might be mentally or physically in a state of
compassion and might be drawing upon his imagination while he was making the
declaration3.

Thus, the Supreme Court has laid a stress, as a safeguard, on corroboration of the dying
declaration before it is acted upon. But the same court later, in Kushal Rao v. State of
Bombay4 has held this observation to be in the nature of obiter dicta and observed that "it
cannot be laid down as an absolute rule of law that a dying declaration cannot form the
sole basis of the conviction unless it is corroborated." In Harbans Singh V. State of
Punjab5 the Supreme Court has held that "it is neither a rule of law nor of prudence that a
dying declaration requires being corroborated by other evidence before a conviction can
be based thereon." In State of U. P. v. Ram Sagar Yadav 6 the Supreme Court has
observed: There is not even a rule of prudence which bas hardened into a rule of law that
a dying declaration cannot be acted upon unless corroborated. The primary effort of the
court has to be to find out whether the dying declaration is true. If it is, no question of
corroboration arises. It is only if the circumstances surrounding the dying declaration are
not clear or convincing that the court may, for its assurance, look for corroboration to the
dying declaration.

A three-Judge bench of the Honble Supreme Court of India , laid down in Sharad
Birdhichand Sarda Vs. State of Maharashtra , the following five grounds regarding
admissibility of dying declaration in evidence under section 32 (1) of the Indian Evidence
Act .

3
Ibid at 423.
4
AIR , l g 5 8 S . C . 22
5
AIR. 1962 S. C. 439
6
AIR. 1985 S. C. 416
13
1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of
a person who dies , whether the death is a homicide or suicide , provided the statement
relates to the cause of death , or exhibits circumstances leading to the death . In this
respect , the Indian Evidence Act , in view of the peculiar conditions of our society and
the diverse nature and character of our people , has thought it necessary to widen the
sphere of Section 32 to avoid injustice .

2) The test of proximity cannot be too literally construed and practically reduced to a cut-
and-dried formula of universal application so as to be confined in a straitjacket . Distance
of time would depend or vary with the circumstances of each case . For instance where
death is a logical culmination of a continuous drama long in process and is , as it were , a
final of the story , the statement regarding each step directly connected with the end of
the drama would be admissible because the entire statement would have to be read as an
organic whole and not torn from the context . Sometimes relevant to or furnishing an
immediate motive may also be admissible as being a part of the transaction of death . It is
manifest that all these statements come to light only after the death of the deceased who
speaks from death . For instance , where the death takes place within a very short time of
the marriage or the distance of time is not spread over more than 3 or 4 months the
statement may be admissible under section 32 .

3) The second part of the clause (1) of section 32 is yet another exception to the rule that
in criminal law the evidence of a person who was not being subjected to or given an
opportunity of being cross-examined by the accused , would be valueless because the
place of cross-examination is taken by the solemnity of oath for the simple reason that a
person on the verge of death is not likely to make a false statement unless there is strong
evidence to show that the statement was secured either by prompting or tutoring .

4) It may be important to note that section 32 does not speak of homicide alone but
includes suicide also, hence all the circumstances which may be relevant to prove a case
of homicide would be equally relevant to prove a case of suicide.
14
5) Where the main evidence consists of statements and letters written by the deceased
which are directly connected with or related to her death and which reveal a tell-tale
story, the said statement would clearly fall within the four corners of section 32 and ,
therefore, admissible . The distance of time alone in such cases would not make the
statement irrelevant .

Distinction Between Indian and English law regarding Dying

Declaration:
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).7 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. Jenkins8 the deceased made a statement implicating the accused. Her dying
declara-tion 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.

7
Avatar Singh Principles of the Law of Evidence,16 th ed.2007,Central Law Publication.
8
(1869) LR 1 CCR 187.
15
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 result-ing 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 ascertain-ment is to be done
by the Judges depending upon the circumstances of each case; it al-ways leaves the
possibility of subjectivity creeping in.9

Scope of Application
In England the admissibility of a dying declaration is confined only to the cases of
homicide whereas in India a dying declara-tion will be admissible in any case in which
the cause of death of a person comes into question.

In R v. Mead10 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 example, 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

9
Wigmore observes "in ascertaining gen-erally the existence of a knowledge of' approaching death, Courts
are now and ':, then making rulings at which common sense revolts. Moved either by declina-tion to allow
the slightest flexibility of rule in applying principles- to circum-stances or by a general repugnance to
exceptions to the hearsay rule, they have recorded decisions which can only be desired by-laymen and
repudiated by the profession." C.f; supra, note 2, p. 237.

10
(1824) 2 B & C 605, c.f.; supra, note 8, p. 652.
16
dying declaration is not admissible to prove rape11. 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 proceed-ings 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 charge12.

Part III- Evidentiary Value of Dying Declaration

Dying declaration can only be taken into consideration when it is

a) Recorded by a competent magistrate (with certain exception),

b) the said statement must be recorded in the exact words,

c) there must not be any scope of influence from the third party, and hence the
declaration must be made soon after the incident that is the reason of the death,

d) there must not be any ambiguity regarding the identity of the offender or cause of
death.

It is very important to note that such a statement must not be made under the influence of
anybody or it must not be given by promoting or tutoring. In case there is such a
suspicion, then such dying declaration needs evidence to corroborate.

11
Supra, note 4, p. 634.
12
Supra, note 4, p. 634.
17
There doesn't seem to be much contro-versy 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 scrutiny13.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 hope-less condition and
expecting an imminent death.14
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.15

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.16Since then,
the Supreme Court in a catena of cases has held that conviction can be based on an

13
Supra note 17, p. 125
14
I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra, note 18, p. 413.

15
Supra note 22
16
Ram NathMadho Prasad v. State of M.P., AIR 1953 SC 420. (Even in this case the above observation of
the Court came in light of the fact that the deceased was shot at during a cloudy, dark night thereby making
it highly impossible for him to recognize the person. Since, there was a possibility of the dying declaration
not containing the truthful account of what happened, the Court insisted on the corroboration of the dying
declaration.)

18
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 Bombay17 where, the
Supreme Court laid down several propo-sitions 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 Gujarat18 that, "a dying declaration is an independent piece of evidence-
neither extra strong nor weak and can be acted upon with-out corroboration if it is found
to be other-wise true and reliable."

The Supreme Court in the case of Dalip Singh v. State of Punjab19 has held that it is
better to leave dying dec-larations made to police officers- during investigation out of
consideration until and unless prosecution satisfies the Court as to why it was not
recorded by a magistrate or doctor. It further held that such declara-tions might be relied
upon if there was no time or facility for adopting the better method. Several High Courts
have also held that it is not prudent to base conviction on a dying declaration made to an

17
AIR 1958 SC 22 : 1958 Crj LJ 106.
18
1991 SCC (1) 744
19
AIR 1979 SC 1173 : 1979 Cri LJ 700
19
investigating officer and the practice of the investi-gating officer recording dying
declaration should not be encouraged.20

It all depends on the facts and circumstances of the case. Thus, where the dying
declara-tion recorded by the police officer was natural, coherent, truthful, narrating
incident without embellishment and explicitly iden-tifying accused, such dying
declaration was held to be valid.21 But, where the investigat-ing officer had recorded the
dying declara-tion even before the victim was certified by the doctor to be fit for making
a statement and though the victim survived for two weeks thereafter, the investigating
officer made no efforts to get this statements recorded by a magistrate, it was held, that
no reliance could be placed on such dying declaration.22

In Rambai v. State of Chhattisgarh,23It was held that if the person recording the dying
declaration is satisfied that the declarant is in a fit medical condition to make a dying
declaration then such dying declaration will not be invalid solely on the ground that the
doctor has not certified as to the condition of the declarant to make the dying declaration.

Similarly, there is no hard and fast rule that a doctor's certificate as to the mental fitness
of the deceased is prerequisite for the admissibility of a dying declaration in evidence. A
constitutional bench of the Su-preme Court in the case of Laxman v. State of
Maharashtra24 while rejecting the conten-tion of the appellant, that since the
certifi-cation of the doctor was not to the effect that the patient was in a fit state of mind
to make the statement, the dying declaration could not form the sole basis of conviction,

20
AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan, 1993 Cr. L. J.
2696 (Raj)
21
I. L, R. (1979) 1 Del. 752, c.f; Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence, vol. 1
Madras Law journal, Madras, 1998, p. 516.
22
Gulab Singh v. State, 1995 Cr. L. J. 3180 (Del)
23
(2002) 8 SCC 33
24
2002 Cri LJ 4095
20
held, that it cannot be said that since there is no certification as to fitness of mind of the
declarant, the dying declaration is not ac-ceptable. The Court held that what is
es-sentially required is that the person who records a dying declaration must be satis-fied
that the deceased was in a fit state of mind. The Court further held that a certifi-cate by
doctor is essentially a rule of cau-tion and therefore, the voluntary and truth-ful nature of
the declaration can be estab-lished otherwise. There might arise situations where it would
not have been possible to get a doctor, thus a dying declaration re-corded in such
situations cannot be rejected merely because there was no one to certify the fact that the
deceased was in a fit state of mind while making the statement.

In such situations the Courts need not reject the dying declaration but should subject it to
strict scrutiny to verify the truth and genuineness of its contents. Once the Court is
satisfied that the dying declaration was recorded without deceased,being tutored, the
same should be accepted and relied upon.25Thus, a dying declaration should not be
rejected merely on the ground that certain formalities were not complied with. As long as
it is truthful and voluntarily made it should be relied upon.

In Smt. Paniben v. State of Gujarat,26the Supreme Court has laid down in several
principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased had an

25
Surjeet Kaur v. State of M.P. 1994 Cri LJ 1886.
26
AIR 1992 SC 1817.
21
opportunity to observe and identify the assailants and was in a fit state to make the
declaration.
(iv)Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence
(v) Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is
not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition
to make the dying declaration look up to the medical opinion. But where the eye-witness
said that the deceased was in a fit and conscious state to make the dying declaration, the
medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration, one first
in point of time must be preferred. Of course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to be accepted.

In case of State of UP v Madan Mohan27 court admitted that Conviction can be based on
it without corroboration if it is true and voluntary. Dying declaration becomes unreliable
if it is not as per prosecution version. This has been summed up the Supreme Court:
1. It is for the court to see that dying declaration inspires full confidence as the maker of
the dying declaration is not available for cross examination
2. Court should satisfy that there was no possibility of tutoring or prompting.

27
AIR 1989 SC 1519
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3. Certificate of the doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the declarant
was not acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police officer to
record the dying declaration only if condition of the deceased was so precarious that no
other alternative was left.
5. Dying declaration may be in the form of questions and answers and answers being
written in the words of the person making the declaration. But court cannot be too
technical

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 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 dec-larations continues to be the good old belief
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 ironi-cally 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

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evidence even though they are based on the principle that a person would not die with a
lie in his mouth.

Thus law related to dying declaration need certain changes to be incorporated into it, so
as to make it more relevant in todays context. Section 32 (1) be amended so as to include
the word "expectation of death' to make its admissibility more in consonance with the
reasons for which it has been enshrined in the Indian Evidence Act.

References
Bibliography

Avatar Singh Principles of the Law of Evidence,16th ed.2007,

M. Monir, Law of Evidence 7th ed
Batuklal the Law of Evidence, 20th ed.

Webliography
http://www.ourlaw.in/2015/08/dying-declaration-meaning-form-.html
http://www.legalindia.com/admissibility-dying-declaration/
http://www.lawyersclubindia.com/articles/DYING-DECLARATION-2639.asp
http://www.lawstudentshelpline.com/index.php/indian-evidence-act/2-
uncategorised/127-q-define-the-term-dying-declaration-is-dying-declaration-
admissible-in-evidence-what-is-the-evidentiary-value-of-dying-declaration
http://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

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