DYING DECLARATION (Tentative title)

ABSTRACT: Dying declaration is very important documentary evidence. It is hearsay

evidence but even then it is given a importance in the court proceedings as it is an exception
to hearsay evidence. Recording of dying declaration is very important. If it is recorded
properly by keeping in mind the essential ingredients of the dying declaration it retains its
full value. Missing any single ingredients of dying declaration makes it suspicious and
offenders are likely to get the benefits due to this.
KEYWORDS: Dying Declaration, Ipsissima Verba, Evidentiary value, Admissibility
CHAPTER I. INTRODUCTION:
Dying declaration got its root from the maxim “Nemo moriturus praesumitur mentire” i.e. a
man will not meet his maker with a lie in his mouth. A statement made by a person for the
cause of his death or the circumstances of the transaction resulting in his death is called a dying
declaration. In the Indian context section 32(1) of the Indian evidence act talks about dying
declaration .[1] it is admissible in evidence even though it has not been given on oath and the
person giving an dying declaration cannot be cross-examined. This is said to be an exception
to the rule against hearsay. Admissibility of a dying declaration as a piece of evidence is being
carried by the principle of necessity and religious belief of the olden days. The necessity being,
that in cases, where victim is the only eye-witness to the crime, the exclusion of his/her
statement might defeat the ends of justice[2].
HOW A DYING DECLARATION SHOULD BE?

There isn’t any particular form of dying declaration. Still the best form of dying declaration is
in the form of questions and answers. However, whenever a dying declaration is being
recorded in the form of questions and answers precaution should be taken that exactly what
questions are asked and what answers are given by the patient those should be written. A dying
declaration can be in the following forms:

1. verbal form;
2. written form; and Gestures and Signs form, if the victim is not in the condition to speak,
he can make a dying declaration through signs and gestures in response to the question
this was said in the ''Queen vs Abdulla'' case
3. If the victim is not able to speak as well as write, then he can make a gesture in the form
of yes or no. this type of dying declaration is also valid.
These procedures will be taken since it is the only form of evidence of a case It is also said that
'' Truth sits on the lips of a person who is about to die’ ‘The victim is the sole eye witness and
hence such evidence should not be and won’t be excluded.

WHO MAY RECORD A DYING DECLARATION?

1. It is safe when it is recorded by the magistrate.
2. If there is no sufficient time to call the magistrate, it can be recorded by anybody
3. If any dying declaration is not recorded by the competent Magistrate, then it is
better if the signatures of the witnesses are taken who are present at the time of
recording it.
4. If a declarant made more than one dying declarations and if there are no variance,
then it retains its full value but If these declarations are inconsistency or contradictory
it won’t be taken. The declarant must be in a fit condition of mind to give the
statement when recording starts and till the end.it must be certified by a doctor. in
case of where it was not possible to take fitness from the doctor, if there are other
witnesses to testify that declarant was in fit condition of the mind then dying
declaration can be retained
DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST HEARSAY
Black's Law Dictionary defines hearsay as "A statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Hearsay evidence is testimony in Court of a statement made out of the Court,
the statement being offered as an assertion to show the truth of matters asserted therein, and
thus resting for its value upon the credibility of the out of Court asserter."[3]
The hearsay rule doesn’t allow the use of out of Court statements as evidence of the truth of
the matters said in that statement. Because the person who is giving this evidence is not
telling his experience but that of another person(heard from another person ). Dying
declaration is one of the exceptions to the rule against hearsay. The reason for making dying
declaration an exception to the hearsay rule arises out of necessity. If this evidence not
considered very purpose of justice will be forfeited in certain situation when there may not be
any other witness to the crime except the person who has since died.[4].suppose a person dies
and he is the last evidence of a particular case then the objective of the case which is to hold
justice becomes a useless one, there may come situations when someone would have been
shot at or infected with fatal injuries while no one was around. under such situations to let the
accused go free just because there was no witness to the crime would result into miscarriage
of justice. Hence, to avoid situations like these the dying declaration has been made an
exception to the rule against hearsay.
CHAPTERISATION:
CHAPTER I. INTRODUCTION
Ø HOW A DYING DECLARATION SHOULD BE
Ø WHO MAY RECORD A DYING DECLARATION
Ø IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING DYING
CHAPTER II. DYING DECLARATION: AN EXCEPTION TO THE RULE
AGAINST HEARSAY EVIDENCE
CHAPTER III. CONDITIONS FOR ADMISSIBILITY AND EVIDENTIARY VALUE
OF A DYING DECLARATION
CHAPTER IV. DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW
CHAPTER V. RELEVANCE OF DYING DECLARATION
a) Basis of Dying Declaration : How Problematic?
b) Evidentiary Value to be Attached to A Dying Declaration.
c) Procedures and Precautions
CHPATER V. JUDICIAL GUIDELINES ON DYING DECLARTION

[1]S. 32(1) of the Indian Evidence Act provides that a statement by a person since deceased,
as tothe
cause of his death or any of the circumstances of the transaction that resulted into his death is
relevant,
irrespective of the proceedings in which the cause of his death comes into question.
[2]Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co.,
Nagpur,
1999, p. 633.
[3]Dying Declaration, at http:/www.lawyersclubindia.com/articles
[4]Dr. R. K. Gorea, “Critical Appraisal of Dying Declaration” JIAFM, 2004, 26(1).