A CRITICAL APPRAISAL OF LAW PERTAINING TO DYING DECLARATION IN

INDIA

CHAPTER 1 ………………………………………………………………………12

INTRODUCTION..................................................................................................... 12

1.1 Historical Perspective..................................................................................... 13

1.2 Religious, Moral and Legal Sanctity behind the principle........................ 14

1.3 English and Indian Law.................................................................................. 14

1.4 Justifications for Dying Declaration............................................................ 15

1.4.1 Nemo moriturus praesumitur mentire......................................................... 16

1.4.2 Necessity.................................................................................................... 16

1.4.3 Integrity and Solemnity.............................................................................. 16

1.5 Aims and Objectives of the Study................................................................. 17

1.6 Significance of the Study............................................................................... 17

1.7 Research Methodology.................................................................................... 18

1.8 Chapterisation Plan…………………………………………………………..17

CHAPTER 2................................................................................................................ 20

CONDITIONS PRECEDENT FOR DYING DECLARATION............................. 20

2.1 Subject Matter of the Declaration................................................................ 21

2.1.1 Cause of Death............................................................................................ 21

2.1.1.1 Declarant died of injury to be proved...................................................... 22

2.1.2 Circumstances of the transaction, which resulted in his death................... 22

2.2 Expectation of Death....................................................................................... 23

2.3 Fit state of mind of the deceased................................................................... 23

2.3.1 Dying Declaration without Certificate of Doctor....................................... 24

2.4 Form of Dying Declaration............................................................................ 25

2.4.1 Dying Declaration in Question and Answer Form..................................... 25

2.4.2 Dying Declaration in oral form................................................................... 26

2.5 Recording of Dying Declaration.................................................................... 26

2.5.1 Dying Declaration recorded by Magistrate................................................. 26

2.5.2 Dying Declaration recorded by Doctor....................................................... 27

2.5.3 Dying Declaration recorded by Police officer during investigation............. 27

CHAPTER 3................................................................................................................ 29

EVIDENTIARY VAUE OF DYING DECLARATION............................................. 29

3.1 Reliability of Dying Declaration................................................................... 29

3.2 Dying Declaration recorded at the earliest opportunity............................ 30

3.3 Sole basis of Conviction................................................................................. 30

3.4 Corroboration of Dying Declaration............................................................. 31

3.5 Plurality of Dying Declarations.................................................................... 32

3.6 Proof of Dying Declaration............................................................................ 33

CHAPTER 4................................................................................................................ 34

DISCREPANCIES OF DYING DECLARATION.................................................. 34

4.1 Weak Type of Evidence................................................................................... 35

4.2 Reliability of Statements............................................................................... 36

4.3 Physical Condition of the Declarant............................................................. 36

4.4 Different Reaction for Different People....................................................... 37

4.5 Cultural Assumptions..................................................................................... 37

CHAPTER 5................................................................................................................ 39

JUDICIAL TREND.................................................................................................... 39

5.1 Dying Declaration not violative of Article 14.............................................. 39

5.2 Dying Declaration by Rape victims............................................................... 39

5.3 Absence of Motive............................................................................................ 40

5.4 Distance of Time............................................................................................. 41

5.5 Brevity indicates Truth................................................................................... 42

5.6 F.I.R. admissible as Dying Declaration........................................................ 43

5.7 Unauthorized persons must be kept away.................................................... 43

Chapter 6…………………………………………………………………………….41

CONCLUSION & SUGGETIONS.......................................................................... 45

Table of Cases:
Abdul Gani v. Emperor AIR 1943 Cal. 465
Adbul Majid Abdul Rahman v. State of Gujarat 1976 SCC (Cr) 625
Amrik Singh v. State of Rajasthan (1994) 1 SCC 563
Bailiben v. State 1992 (1) GLH 577
Bakshis Singh v. State of Punjab AIR 1957 SC 904
Bharat v. State of Rajasthan 1981 CrLJ. 1274
Dalbir Singh v. State of Punjab AIR 1987 SC 1328
Danu Singh v. Emperor AIR 1925 All 227
Dayaramsingh v. State of Madhya Pradesh 1981 CrLJ 530 (MP)
Dileep Singh v. State of Punjab 1979 CrLJ. 700
Ghasi Ram v. State of Rajasthan 1985 Raj Cr C 359
Gopal Singh v. State of Bihar 1988 PLJR 396
Harbans Singh v. State of Punjab AIR 1962 SC 439
Hari alias Satya Pal v. State of UP 1983 All Cr R 283
Jaya Ram v. Sate of Tamil Nadu AIR 1978 SC 1519
K.R. Reddy v. Public Prosecutor 1976 SCC (Cr) 473
Kalua v. State 1985 (2) Crimes 432
Kans Raj v. State of Punjab AIR 2000 SC 2324
Kapur Singh v. Emperor AIR 1930 Lah 450
Khushal Rao v. State of Bombay AIR 1958 SC 22
Khushali v. State 1991 CrLJ. 3244 (All)
Kidd v. State 258 So2d 423, 429-30 (Miss 1972)
Krishnama Naiken v. Emperor AIR 1931 Mad 430
Kundabal Subramanyam v. State of Andhra Pradesh 1993 CRI LJ (SC) 1635
Kusa v. Sate of Orissa AIR 1980 SC 559
Lallubhai v. State of Gujarat AIR 1972 SC 1776
M.G. Bhagat v. State of Gujarat 1983 Cr. L.J. (Guj.) 303
Mafabhai N. Raval v. State of Gujarat 1992 SCC (Cr.) 810
Mahmood Ilahi v. State of UP 1990 CrLJ. 850
Majan Miyan v. State AIR 1970 Assam 121
Mangilal v. State of Madhya Pradesh 1993 Cr.LR (MP)
Mohan Lal v. State of Maharashtra AIR 1982 SC 839
Munnu Roja v. State of MP AIR 1976 SC 2199
Najjam Faruqui v. State of West Bengal AIR 1998 SC 682
Narain Singh v. State of Haryana AIR 2004 SC 1616
Nga Ba Mim v. Emperor 1935 Rangoon 418
Paniben v. State of Gujarat 1992 SCC (Cr.) 403
Patel Hiralal Joita Ram v. State of Gujarat AIR 2005 SC 2944
Purna Chandra Singh v. State of Orissa 1985 CrLJ 248
R v. Reason and Tranter 1 Stra. 1 East, P. C. 353
Radhey Shyam v. State of Uttar Pradesh 1994 All LJ 69
Rajpal v. State (1984) 1 Crimes 821 (Delhi)
Ram Bihari Yadav v. State of Bihar AIR 1988 SC 1850
Ram Das Gajanan Patil v. State of Maharashtra 1979 Cr.LR (Mah) 400
Ram Dayal v. State 1988 RCC 138 (Raj) (DB)
Regina v. Osman (1881) I 5 Cox I
Ronal Kiprono Ramkat v. State of Haryana AIR 2001 SC 2488
Satya Narain v. State (1978) 15 ACC 17
Sharad Birdichand Sarda v. State of Maharashtra AIR 1984 SC 1622
Sher Singh v. State of Rajasthan AIR 2008 SC 1426
State of Assam v. Mahim Barakataki AIR 1987 SC 98
State of HP v. Hem Raj 1992 SLC 158 P 169 (HP)
State of Kerala v. Rajayyan (1995) 11 CCR 187 (DB)
State of MP v. Baital Singh 1987 CrLJ. (MP) 100
State of Orissa v. Sudam Ch. Mohanty 1990 (2) Crimes 186
State of Punjab v. Savitri Devi 1983 CrLJ. 1093
State of Rajasthan v. Kishore AIR 1996 SC 3035
State of UP v. Ram Sagar Yadav, AIR 1985 SC 416
State of UP v. Ramesh Prasad Misra AIR 1996 SC 2766
State v. Kanchan AIR 1954 All 153
State v. Moody 3 N.C. (2 HAYW.) 50 (1798)
Sulaiman v. King AIR 1941 Rang 301
Tapinder Singh v. State of Punjab AIR 1970 SC 1566
The King v. Woodcock (1789) 168 ENG. REP. 352 (P.C.)
Viramji Mohatji Thakore v. State of Gujarat 2005 (2) GLR 1622
Wali Mohammad v. Emperor AIR 1930 Oudh 2499

CHAPTER 1
 INTRODUCTION

Dying Declarations are the statements made by a dying person as to injuries, which culminated in
his death or the circumstances under which the injuries were inflicted. Statements made by a
deceased long prior to the occurrence resulting in death are not Dying Declaration and not
admissible in Indian Evidence Act. The general ground of admissibility of the evidence is that no
better evidence is to be had.

Dying declaration is based on the maxim “Nemo moriturus praesumitur mentire”which means ‘a
man will not meet his maker with a lie in his mouth’. It operates as an exception to the hearsay
rule. Hearsay evidence is excluded because it is considered not sufficiently trustworthy. It is
rejected because it lacks the sanction of the tests applied to admissible evidence i.e. the oath and
cross-examination. They are not given any importance in the courts because the person who is
giving this evidence is not telling his experiences but that of another person and who cannot be
cross examined to verify the facts. It is an exception because if this evidence is not considered the
very purpose of the justice will be forfeited in certain situations when there may not be any other
witness to the crime except the person who has since died.

A Dying Declaration as envisaged by Section 32 of the Indian Evidence Act, 1872 need not
necessarily be from a person who is dying at the time of making the statement. In addition, at the
time of making such declaration, it is necessary that he or she should know that there is impending
death. In other words, at the time of making such declaration it is a legal mandate that such person
must entertain expectation of death1.

A dying declaration is considered credible and trustworthy evidence based upon the general belief
that most people who know that they are about to die do not lie. As a result, it is an exception to
the Hearsay Rule, which prohibits the use of a statement made by someone other than the person
who repeats it while testifying during a trial, because of its inherent untrustworthiness. If the person
who made the dying declaration had the slightest hope of recovery, no matter how unreasonable,
the statement is not admissible into evidence. A person who makes a dying declaration must,
however, be competent at the time he or she makes a statement, otherwise, it is inadmissible.

1.1 Historical Perspective

1
Spencer, Carlton E. "Dying Declarations in Civil Cases." Or. L. Rev. 9 (1929): 174.
The hearsay exception of dying declaration is traceable to a famous 1789 English Case,The King v.
Woodcock.Woodcock admitted a dying statement by a woman blaming her husband for her severe
injuries after being beaten. The court justified admitting the unconfronted statement on the grounds
that such statements are “made in extremity, when the party is at the point of death, and when
every hope of this world is gone: when every motive to falsehood is silenced, and the mind is
induced by the most powerful considerations to speak the truth.” The court held that “a situation
so solemn, and so awful, is considered by the law as creating an obligation equal to that which is
imposed by a positive oath administered in a Court of Justice.” This traditional justification of the
dying declaration is, as words such as “awful” and “solemn” indicate, religiously based. Fear of
heaven’s ultimate punishment for false testimony, prompts sincerity. The dying person would not
dare depart this life and greet her maker with a lie on her lips. This case refers to a decision
in R v. Reason and Tranter, decided in 1722. That case, however say nothing as to any limitation
on the rule. A series of cases from 1678 to 1765 shows that during that period declarations of
deceased persons as to the cause of their death were admitted even though the declarants had hopes
of recovery when they were made.

The dying declaration exception appears in some very early American case law. For instance,
in State v. Moody[6], a North Carolina case from 1798, the court explained that dying declarations
may be received “of one so near his end that no hope of life remains, for then the solemnity of the
occasion is a good security for his speaking the truth, as much so as if he were under the obligation
of an oath.”[7] The North Carolina court warned, however, “if at the time of making the declaration
he has reasonable prospects and hope of life, such declarations ought not to be received; for there
is room to apprehend he may be actuated by motives of revenge and an irritated mind, to declare
what possibly may not be true.”[8]

1.2 Religious, Moral and Legal Sanctity behind the principle

The principle on which the rule of dying declaration is based, Nemo Moriturous Proesumitur
Mentiri, means that a man will not meet his maker with a lie in his mouth. From the very beginning
of the judicial system it is believed that a man on his deathbed never tells a lie. Ordinarily, a person
on the verge of his passing away from the world, however, desperate criminal or liar he may be
throughout his life, but where his or her end is in sight under the constraints of his conscience to
speak out the truth, he will not lie as to falsely frame-up and get convicted and sentenced an
innocent person. Religious and moral ethics presumes that truth sits on the lips of a dying man.
According to Hindu mythology, when one comes under the shadow of Yamraj (messenger of
death), he can speak nothing except truth. Even under the Mohammedan Law certain deathbed
transactions and acknowledgments are respected.
1.3 English and Indian Law
The Indian law on the question of the nature and scope of dying declaration has made a distinct
departure from the English Law where only the statements, which directly relate to the cause of
death, are admissible. It is well settled by now that there is difference between the Indian Rule and
the English Rule with regard to the necessity of the declaration having been made under
expectation of death.

In English Law, the conditions for admissibility of dying declarations are- Firstly, that the
declarant should have been in actual danger of death at the time when they were made; secondly,
that he should have had a full apprehension of his danger; and thirdly, that death should have
ensued. Whereas, under the Indian law the dying declaration is admissible, whether the person
who made it was or was not under expectation of death, which, of course, makes a lot of difference.

In Indian Law, the question of nature and scope of dying declaration; has made a distinct departure
from English Law, where only the statements, which directly relate to the cause of death, are
admissible. The framers of the Indian Evidence Act, 1872, in view of the peculiar conditions of
our people society and the diverse nature and character of our people, thought it necessary to widen
the sphere of Section 32 to avoid injustice. A provision similar to the second part of Cl. (1) of
Section 32, viz. “the circumstances of the transaction which resulted in his death, in cases in which
the cause of that person’s death comes into question”[9], is not to be found in the English Law.

As distinguished from the English Law Section 32 does not require that such a statement should
have been made in expectation of death. Statement of the victim who is dead is admissible in so
far as it refers to cause of his death or as to any circumstances of the transaction, which resulted in
his death. The words “as to any of the circumstances of the transaction which resulted in his death”
appearing in Section 32 must have some proximate relation to the actual occurrence. In other words
the statement of the deceased relating to the cause of death or the circumstances of the transaction,
which resulted in his death, must be sufficiently or closely connected with the actual transaction.

Due weight is required to be given to a dying declaration keeping in view the legal maxim “Nemo
moriturus praesumitur mentire” i.e. ‘a man will not meet his Maker with a lie in his mouth’. To
make such statement as substantive evidence, the person or the agency relying upon it is under a
legal obligation to prove the making of a statement as a fact. If it is in writing, the scribe must be
produced in the Court and if it is verbal, it should be proved by examining the person who heard
the deceased making the statement. However, in cases where the original recorded dying
declaration is proved to have been lost and not available, the prosecution is entitled to give
secondary evidence thereof.
1.4 Justifications for Dying Declaration
There are various justifications that are applied as grounds of admissibility of the dying declaration
statements. Various courts have time and again used such justifications as basis for convicting the
accused solely on the basis of dying declaration, provided a careful perusal of the circumstances
raises no doubt regarding the credibility of the statements of the declarants.
1.4.1 Nemo moriturus praesumitur mentire
The admissibility of Dying Declaration is based on the maxim “Nemo Moritur Praesumntur
Mentiri” which means ‘a person who is about to die would not lie’. A dying declaration made by
person on the verge of his death has a special sanctity as at that solemn moment, a person is most
unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee
of the truth of the statement made by the deceased regarding the causes or circumstances leading
to his death. A dying declaration, therefore, enjoys high status, as a piece of evidence, coming as
it does from the mouth of the deceased victim.

1.4.2 Necessity
The victim being generally the only eyewitness to the crime, the exclusion of his statement would
tend to defeat the ends of justice. A dying declaration is admissible in evidence on the principle of
necessity and can form the basis of conviction if it is found to be reliable. While it is in the nature
of an exception to the general rule of forbidding hearsay evidence, it is admitted on the premises
that ordinarily a dying person will not falsely implicate an innocent person in the commission of a
serious crime. If, in the facts and circumstances of the case, it is found that the maker of the
statement was in a fit state of mind and had voluntarily made the statement on the basis of personal
knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable,
there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted
upon unless it is corroborated.

1.4.3 Integrity and Solemnity

Dying words matter to people for reasons of integrity and solemnity. One does not have to believe
in a deity or an afterlife to see death as presenting a moment of moral seriousness and clarity. This
is a position advanced by Wigmore[10] and acknowledged by the advisory committee notes to the
Federal Rules, which observes “while the original religious justification for the dying declaration
exception may have lost its conviction for some persons over the years, it can scarcely be doubted
that powerful psychological pressures are present.”[11]

1.5 Aims and Objectives of the Study

In view of the foregoing discussion, the main purpose of the present work is to introduce the
concept of Dying Declaration and discuss its relevance. In the present study it has been attempted
to highlight the object of the provision relating to Dying Declaration. The effort has been made to
evaluate the efficacy and adequacy of the existing laws in combating and providing relief &
remedy; to examine the interpretation given by the Courts. While dealing with such a vast topic, it
is not possible to make the work exhaustive as the subject is holding ever-growing importance and
scope. Nevertheless a line has to be drawn somewhere for accomplishing the present research work
in an effective way.
Accordingly, the present work covers the analysis and social investigation regarding factual status,
dimensions and paradigms of law on the Dying Declaration and laws dealing with ancillary issues
which help to explain these areas such as admissibility, reliability and conviction on its basis. The
work covers critical analysis of the Dying Declaration, its admissibility, reliability etc.

The main focus of the study is to undertake the evaluation of judgment and interpretation of Dying
Declaration. Therefore this research work is intended to make an extensive and analytical study of
Dying Declaration.

1.6 Significance & Scope of the Study

The research work further assumes its importance when the judicial pronouncement of various
High Courts and Supreme Court is analyzed. The study reveals that some facts are attacking at the
existence and worth of these legislations as law must keep its pace with the objective and it should
prove its worth through proper application.
In the upshot of aforesaid discussion, it is hoped that the study would provide valuable and
comprehensive information regarding meaning and interpretation of the laws. It would also
provide sufficient insight into the object, implementation of laws.

1.7 Research Methodology

The quality and value of research depends upon the proper and particular methodology adopted
for the completion of research work. Looking at the vastness of the research topic doctrinal legal
research methodology has been adopted. To make an authenticated study of the research topic
‘dying declaration- the relevance of the last words’ enormous amount of study material is required.
The relevant information and data necessary for its completion has been gathered from both
primary as well as secondary sources available in the books, journals, periodicals, research articles
and websites, and Acts of the Parliament.

Keeping in view the need of present research, various cases filed in the Supreme Court as well as
in the High Courts on the issue of and the judgments therein have also been used as a source of
information. The judgments pronounced in the cases have been analyzed in detail and used as a
means of diagnosis to know the basic lacunae arising in the way of providing the remedy.

1.8 Chapterisation Plan

In this research project the topic has been divided into few different chapters. This research project
deals with Dying Declaration as given under the Indian Evidence Act. In the first chapter the
historical perspective along with English and Indian law relating to the same has been discussed
in depth. The reasons for the acceptance of this principle has also been dealt with in the first chapter
itself.

In the second chapter of this research the conditions essential for the principle of Dying Declaration
has been discussed and explained in depth and detail. The manner in which the dying declaration
can be taken or accepted by the court is also dealt with in this chapter.

In the third chapter of the study the Evidentiary value of the dying declaration with instances where
it has been accepted or rejected by the courts in the various cases has been given and explained as
well as discussed. Can dying declaration become the sole reason for conviction or not is also
discussed in this chapter. The effect of discrepancies in the dying declaration or multiple dying
declaration and its effect on the case and the evidentiary value has been discussed in the chapter 4
of the study. Finally in chapter 5 the Judicial Trend of the the Principle of Dying Declaration as
played or has been accepted or rejected in the courts in the various cases has been discussed along
with the case facts and decisions.

Chapter 6 is the final chapter of the study discusses the conclusion and suggestions regarding the
research topic is done. This is how the whole research project has been divided into the chapters
and discussed every element in detail as to the Law Pertaining to Dying Declaration in India.

CHAPTER 2

CONDITIONS PRECEDENT FOR DYING DECLARATION

Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though
such an exception has not been used in any statute. It means statements made by a person as to
cause of his death as to the circumstances of the transaction resulting in his death. The grounds of
admission are: (1) necessity for the victim being generally the only principal eyewitness to the
crime, the exclusion of the statement might defect the ends of justice (2) the sense of impending
death, which creates a sanction equal to the obligation of an oath. It is admitted is that they are
declarations made in extremity, when the party is at point of death and when every hope of his
words is gone, when every motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth, a situation so solemn and so lawful is considered by
the law as creating an obligation equal to that which is imposed by a positive oath administered in
the court of justice.

The Hon’ble Supreme Court in Lallubhai v. State of Gujarat[12] held that the law regarding Dying
Declaration is very clear. A Dying Declaration must be Closely scrutinized as to its truthfulness
like any other important piece of evidence in the light of the surrounding facts and circumstances
of the case bearing in mind on the one hand, that the surrounding is by person who has not been
examined in court on oath and on other hand the Dying man is normally not likely to implicate
innocent persons falsely.

It is said that truth sits on the lips of a person who is about to die. The Supreme Court inKundabal
Subramanyam v. State of Andhra Pradesh[13], “A Dying Declaration is made by a person on the
verge of its death has a special sanctity as at that solemn moment a person is most unlikely to make
an untrue statement. The shadow of the impending death is by itself the guarantee of the true of
the statement made by the deceased regarding the cause or circumstances leading to his death”[14].

The term dying declaration has not been defined in Indian Evidence Act, 1872, but reading Section
32(1), the term dying declaration, may be defined as follows:

“A dying declaration is statement made by a person who is dead; as to cause of his death or
as to circumstances of transaction which resulted in his death, in cases in which his death comes
into question, such statements are relevant under Section 32 of Evidence Act, whether the person
who made there was or was not, at the time when they were made, under expectation of death and
whatever maybe the nature of proceeding in which the cause of his death comes into question.”[15]

The Supreme Court in State of UP v. Ramesh Prasad Misra[16] has held that Section 32(1) is to be
construed in a wide manner and includes a statement by the deceased regarding motive behind the
criminal act.

2.1 Subject Matter of the Declaration

The statement must be as to the cause of the declarant’s death, or as to the any of the circumstances
of the transaction, which resulted in his death, I.e., the case and circumstances of the death, and
not previous or subsequent transaction. Such independent transactions are excluded as not falling
within the principle of necessity on which such evidence is received.[17]

2.1.1 Cause of Death

This clause lays down that when the statement is made by a person as to the cause of his death, or
as to any of the circumstances of transaction, which resulted in his death, his statement would be
relevant in a case in which the cause of his death is the point at issue. A is assaulted and dies.
Before his death he makes a statement that “B assaulted him with spear.” This statement of A is
admissible as it relates to the cause of his death. The fact that the deceased lingered for a few days
after receiving injuries doe not deprive the statement of its character as a dying declaration
admissible under this section. [18]But if there is nothing to show that the injuries to which the
statement of the deceased related were the cause of his death the statement is not admissible as
dying declaration.
2.1.1.1 Declarant died of injury to be proved
Before the statement of a person as to cause of his death may be used as dying declaration it must
be proved that his death was caused by the injury he received in the incident for which accused is
being prosecuted. If the deceased stated that X injured him but he did not die of the injuries rather
he died of some illness such as pneumonia, his statement that X caused him injuries cannot be
admitted under this section.[19]

2.1.2 Circumstances of the transaction, which resulted in his death

The words “resulted in his death” do not mean ‘caused his death.’ The expression “any of the
circumstances of the transaction which resulted in his death” are wider in scope than the expression
“cause of death.” A statement not relating to the cause of death of its maker maybe admissible if
it relates to the circumstances of the transaction, which resulted in his death.[20] In a case of robbery
a statement made by a person before her death regarding the circumstances of the robbery is
admissible. Although remotely, wounds caused her death, received at the robbery.[21]

In Patel Hiralal Joita Ram v. State of Gujarat[22], it was held by Supreme Court that the words
“Statement as to any circumstances” are by themselves capable of expanding the width of scope
of admissibility. Any thing, which has nexus with, his death proximate or remote, direct or indirect
can also fall within the purview of sub-section.
In Kans Raj v. State of Punjab[23], the Supreme Court held that the words “as to any circumstances
of transaction which resulted into his death”, appearing in Section 32 makes it clear that the
circumstances resulting in death must have proximate relation to actual occurrence.

Circumstances must have some proximate relation to the actual occurrence and must be of the
transaction which resulted in death of the declarant, though as for instance in case of prolonged
poisoning they may be related to dates at a considerable distance from the date of the actual fatal
date.

2.2 Expectation of Death

Section 32 declares that such statements are relevant whether the person who made them was or
was not at the time when he made the statements under the expectation of death.[24] It does not
require that the statements sought to be admitted in evidence should have been made in immediate
expectation of death. Though the expectation of the death does not affect the relevancy of dying
declaration but it will certainly affect the weight attached to the declaration. If the person making
the declaration is conscious that he is dying soon the possibility to speak the truth is very great.[25]

In Najjam Faruqui v. State of West Bengal[26], the Supreme court held that such statements are
relevant whether the person who made the statement was or was not at the time, when the statement
was made, under expectation of death and whatever be the nature of proceeding in which the cause
of his death comes into question.

2.3 Fit state of mind of the deceased

The courts have used different words- ‘fit condition’, it state of mind’ and ‘conscious mind’, but
all are synonymous with each other. The mental fitness and capacity to make the statement of the
victim at the time of making the dying declaration is a primary consideration in admission of the
dying declaration. It can be imagined from citus of injury, nature of injury and general condition
of the victim besides opinion of the doctor and witnesses. The Court must be satisfied that the
deceased was in a fit state of mind to make statement after the deceased had a clear opportunity to
observe and identify his assailants and that he was making the statement without any influence or
rancor.[27]

On the question of mental fitness in Mafabhai N. Raval v. State of Gujarat[28], it was held by the
Apex court that unless there is something inherently defective, the court cannot substitute its
opinion for that of the doctor. Normally the court, in order to satisfy whether the deceased was in
a fit mental condition to make the dying declaration, look up to the medical opinion. But where
the eye-witness has said that the deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail.[29]Where two doctors and the Magistrate were
certifying that the patient was conscious and in fit state of mind, then no doubt should be cast over
the capacity to make the statement.[30]

The dying declaration becomes doubtful when the doctor, who attended the victim, alleged that
the victim told him who were the assailants but another doctor stated that, in view of the nature of
injuries, the victim would have become unconscious immediately.[31] The dying declaration also
becomes doubtful in the absence of any other independent direct testimony when according to
medical evidence the deceased’s injuries were very likely to have resulted in his immediate
death.[32]

2.3.1 Dying Declaration without Certificate of Doctor

Normally, the court places reliance on the medical evidence for reaching the conclusion whether
the person making a dying declaration was in a fit state of mind but where the person recording
the statement of the deceased states that the deceased was in a fit and conscious state, the medical
opinion will not prevail nor can it be said that there being no certification of the doctor as to fitness
of the mind of the declarant, the dying declaration is not acceptable. A certificate of doctor is
essentially a rule of caution. Where the testimony of the Magistrate is to the effect that the declarant
was fit to make the statement, it can be acted upon without there being certificate of doctor
provided that the court ultimately held the same to be voluntary and truthful.[33]

2.4 Form of Dying Declaration

There is no particular form to be employed in making a dying declaration. It may be oral or in
writing or may even be partly oral and partly in writing. On the other hand, it may be neither oral
nor written; that is to say, it may consist of some signs or gestures made by the deceased. Possibly
the declaration should be written in the exact words of the person making it.[34] But simply because
the very words of the injured are not written dying declaration cannot be rejected.[35]

2.4.1 Dying Declaration in Question and Answer Form

Though it is a well settled law that dying declaration should preferably be in question and answer
form and that as far as possible the exact words used by the injured must be reproduced, it is
certainly not desirable for cyclostyled forms to be prepared because it reduces the entire operation
to a mechanical exercise and there is plenty of scope for malpractices particularly in situation
where certain parts of the form may be left unfilled. It is therefore, much safer to keep the dying
declaration short, concise and to the point to write out the questions and answers that have been
elicited.
In order to determine as to whether the dying declaration was truthful, Supreme Court had laid
down certain tests in Khushal Rao v. State of Bombay.[36] They are (1) declaration to a Magistrate
is preferable to an oral declaration, (2) opportunity of dying man of observation, (3) capacity to
remember remained unimpaired, (4) a consistent statement, (5) an early statement and (6) no
tutoring.

It is not necessary that the dying declaration should be in the question and answer form. The
declaration should be taken down in the person making it. It should be ipissima verba of the person
making it. On the other hand it may be open to objection if leading questions were put to the
declarant for the purpose of eliciting information. It is for the court to decide the circumstances of
each case whether the statement recorded was free, voluntary, clear and unambiguous statement
of the deceased at the time when he is capable of making that statement.

2.4.2 Dying Declaration in oral form

In order to be acted upon, the evidence with regard to an oral dying declaration should be subjected
to strictest and closest circumstances. Where the oral dying declaration is found true and gets
corroboration from material particulars available on record it can form basis of conviction of an
accused. Where an oral dying declaration is corroborated by the testimony of more than one
independent witness, it cannot be rejected merely on the ground that the ability of the declarant to
make an oral dying declaration was not supported by medical evidence.[37]An oral dying
declaration that creates doubt is not worthy of credence.[38]

2.5 Recording of Dying Declaration

Neither Section 32 nor its clause (1) specify as to who is authorized to record any dying declaration,
yet the practice has been that any Magistrate, a doctor, a police officer or any other person can
record it provided he follows certain recognized principles so as to make the statement worth
reliance by a court of law.

2.5.1 Dying Declaration recorded by Magistrate

The dying declaration recorded by a Magistrate carries much weight, as it stands on a higher
footing than a dying declaration recorded by any other agency, which is fallible to all the infirmities
of human memory. The dying declaration recorded and proved by the Magistrate which is clear,
concise and sounds convincing, can be accepted as truthful and acted upon for convicting the
accused even in the absence of corroboration.[39] It is the duty of the Magistrate to know these
rudimentary things, namely that before recording the dying declaration he must get a certificate of
the doctor appended regarding the mental state of the deponent, and secondly, they should mention
the time when such statement was taken down. In the absence of it is not safe to rely upon the
statement.[40]

2.5.2 Dying Declaration recorded by Doctor

The doctor is the right person to opine about the fitness of the deceased. If the doctor found that
life in the patient was ebbing fast and there was no time to call the police or magistrate, in such a
situation, the doctor was justified, indeed he was duty bound to record the dying declaration of the
deceased. The doctor is a disinterested and respectable witness and the dying declaration recorded
by him should be accepted.[41]In Khushali v. State[42], the doctor was justified in recording the
statement when he first sent requisition for the magistrate, and then recorded the same as the
Magistrate was found to be out of station. But where the doctor neither got it attested nor informed
the investigating officer, no weight should be given to such dying declaration.[43]

2.5.3 Dying Declaration recorded by Police officer during investigation

Investigating officers are naturally interested in the success of the investigation and the practice of
the investigating officer himself recording a dying declaration during the course of investigation
ought not to be encouraged. But when the dying declaration made to a police officer is properly
proved and it is corroborated by the reliable evidence on record it cannot be said that it cannot
form the basis of conviction of the accused concerned. There is no law that a dying declaration
which is not made to a Magistrate cannot be used in evidence but its better to leave such dying
declaration out of consideration unless and until the prosecution satisfies the court as to why it was
not recorded by a Magistrate or a doctor.[44]

CHAPTER 3

EVIDENTIARY VAUE OF DYING DECLARATION

It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is
that the courts must exercise due care and caution to ensure genuineness of the dying declaration,
keeping in mind that the accused had no opportunity to test the veracity of the statement of the
deceased by cross-examination. As rightly observed by the Courts, the law does not insist upon
the corroboration of dying declaration before it can be accepted. The insistence of corroboration
to a dying declaration is only a rule of prudence.

When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or
animosity, and is not a product of the imagination of the declarant, in that event, there is no
impediment in convicting the accused on the basis of such dying declaration. When there are
multiple dying declarations, each dying declaration has to be separately assessed and evaluated
and assess independently on its own merit as to its evidentiary value and one cannot be rejected
because of certain variation in the other.

3.1 Reliability of Dying Declaration

A dying declaration, before it could be relied upon, must pass a test of reliability as it is a statement
made in absence of the accused and there is no opportunity to the accused and there is no
opportunity to the accused even to put it through the fire of cross examination to test its genuinety
or veracity. Therefore, it becomes the duty of the court to subject to it to close scrutiny.

Though in law there is no bar in acting on the part of Dying Declaration, it has to pass the test of
reliability. Section 32 is an exception to the hearsay rule and unless evidence is tested by cross-
examination it is not credit worthy. A Dying Declaration made by a person on the verge of his
death has a special sanctity, as at that solemn moment by a person is most unlikely to make any
untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement
of the deceased regarding circumstances leading to his death. But at the same time the dying
declaration like any other evidence has to be tested on the touchstone of creditability to be
acceptable. It is more, so, as the accused does not get an opportunity of questioning veracity of the
statement by cross-examination. The dying declaration if found reliable can form the base of
conviction.[45]

Once the statement of Dying person and the evidence of the witnesses testifying the same passes
the test of careful scrutiny of the courts, it becomes very important and reliable piece of evidence
and if the court is satisfied that the dying declaration is true and free from any embellishment such
a Dying Declaration by itself can be sufficient for recording conviction even without looking for
conviction.[46]

3.2 Dying Declaration recorded at the earliest opportunity

A dying declaration made soon after the occurrence at the earliest opportunity or at the time of
expected death, or at the time where the maker could not consult others, or receive hints from
others, ordinarily deserves great weight. If the deceased did not disclose the names at the earliest
opportunity, only two inferences can be drawn, namely, either the deceased was not conscious at
all an was not in a position to talk to anybody or that even though he was conscious he did not
disclose the occurrence because under the stress and strain of the assault, which took place
admittedly at a time when darkness had set in and there was very little moonlight, he was not able
to identify the assailants. No third inference can be spelt out, observed the Apex court in K.R.
Reddy v. Public Prosecutor[47].

3.3 Sole basis of Conviction

Conviction can be based on the strength of Dying Declaration without corroboration provided it is
found trustworthy. However, before it is acted upon, it has to closely scrutinized since dying
declaration given by a person before his death is a one sided affair and before placing reliance on
it and closing case for seeking corroboration, it is not only desirable but also essential to eliminate
the chances of suspicion after careful and close scrutiny.[48]
In Amrik Singh v. State of Rajasthan[49], the Supreme Court held that in a severely injured
condition, it could not be expected that the doctor would detain the injured to get information from
him as his natural anxiety would be to send him for medical aid. The statement made afterwards
by the injured on the way cannot be doubted on the ground that it was not made at the earliest
opportunity. But when the incident took place between 9 and 9:30 p.m. and the statements of the
witnesses were recorded at 11 p.m., there was, therefore, time for deliberation and the possibility
of the accused being falsely involved in the crime cannot be ruled out.[50]

Their Lordships of the Supreme Court have approved a fundamental principle that where the
statement of a dying person passes the test of careful scrutiny applied by courts, the statement turns
out to be a most reliable piece of evidence which needs no corroboration.[51]

In State of Punjab v. Savitri Devi[52], the Full bench of the Punjab and Haryana High Court
observed: “The dying declaration is undoubtedly admissible under Section 32 of the Indian
Evidence Act, 1872, and not being a statement on oath so that its truth could be tested by cross-
examination, the courts have to apply the strictest scrutiny of the closet circumspection of the
statement before acting upon it.”[53]

3.4 Corroboration of Dying Declaration

As regards to corroboration of the Dying Declaration is concerned, the Supreme Court in Harbans
Singh v. State of Punjab[54], held that “it is neither a rule of law nor of prudence that a dying
declaration requires to be corroborated by other evidence before conviction can be based thereon.
The evidence furnished by the dying declaration must be considered just as the evidence of any
witness, though undoubtedly some special consideration arises in the assessment of Dying
Declaration which does not arise in the case of assessing the value of a statement made in the court
by a person claiming to be a witness of the occurrence”[55]. In brief, a Dying Declaration must
satisfy the court that it was “true and voluntary” and that the declarant was in a fit state of mind.
In State of Rajasthan v. Kishore[56], the court held that the Dying Declaration if found to be true
and free from any effort to induce the deceased to make a false statement and if it is coherent and
consistent, there is no legal impediment to form such Dying Declaration as basis of conviction
even though there is corroboration. Thus the primary duty of the court of the court is 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, the court may, for
its assurance, look for corroboration.[57]

3.5 Plurality of Dying Declarations

A dying declaration should satisfy all the necessary tests and one such important test is that if there
is more than one dying declarations they should be consistent particularly in material particulars.
The truth should be judged with reference to all dying declarations made by him. When one of the
two dying declarations is found to be untruthful, the court should not readily accept the other.
In Mohan Lal v. State of Maharashtra[58], the Supreme Court held that, where there are more than
one statements in the nature of dying declaration made by the accused, one first in point of time
should be preferred.

Where there are two dying declarations in the case and both are at variance with regard to the place
of incident, use of weapons, and the participation of the accused persons and the eyewitnesses
examined in the case are not reliable as it is hazardous to base conviction on such dying
declarations.[59] Where there are more than one dying declarations of the same person they have to
be read in evidence as one and if they differ on material aspects the effort should be made to see
if they could be reconciled.[60]

3.6 Proof of Dying Declaration

Before a statement can be admitted, proof must be given that the person is dead and the burden of
this is upon the person who wishes to give the statement in evidence.[61]Dying declaration must be
proved whether they are written statements or verbal statements. If they are verbal statements, the
persons who heard he deceased make verbal statements must be examined on oath as witnesses
and if a person at the time made a record of the deceased’s statements he may refresh his memory
by referring thereto under Section 159[62], or if he has no specific recollection of the statements
made, he may, under Section 160[63], testify to facts mentioned in the document if he is sure that
the facts were correctly recorded by him.

If the document is thus put on record it does not become, in the strict sense, substantive evidence
but it forms part of the testimony of the witness who recorded it. If the statement to be proved is a
written statement made by a person who is dead, then it must be proved that such statement was
so made by the person who is dead. In that case, of course, the written statement itself becomes
substantive evidence.[64]

Where the dying declaration has been recorded in writing by the magistrate and had been read over
to the deceased, there can be no doubt that whatever is mentioned therein is the faithful statement
of the deceased himself. But even then, proof of the identity of the person who made the statement
is necessary.[65]

CHAPTER 4

DISCREPANCIES OF DYING DECLARATION

A dying declaration is not to be believed merely because no possible reason can be given for
accusing the accused falsely. It can only be believed, if there are no grounds for doubting it at all.
It is not always safe to convict an accused person merely on the evidence furnished by a dying
declaration, without further 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 and physically in a
state of confusion and might well be drawing upon his imagination while he was making the
declaration.

When one party is killed by another, there are often no witnesses to the murder other than the killer
and the victim who is now absent. In some circumstances, the victim has enough life left to utter
some final words to an individual who happens to be in the vicinity of the crime. Usually these
statements, known in legal terms as dying declarations, relate to the circumstances of the victim's
death, including the identity of the perpetrator. If the crime is investigated by law enforcement
authorities, the final words of the victim can be reported by the individual who received this last
utterance. If the matter goes to trial, this report may be heard in a courtroom by judge and jury
who will decide the fate of the accused, which may include loss of liberty or even death.

The presentation of the victim’s words in court is a dramatic example of what in linguistics is
referred to as “reported speech.” In the case of a criminal trial, this instance of reported speech is
considered by the court as “direct” (i.e., a faithful and literal repetition of the victim’s utterance)
rather than “indirect,” where there is some paraphrasing of the victim’s words.[66]

When one reports the speech of another for the truth of the matter asserted, such as when the
recipient of a dying declaration reports it in order to prove the identity of the assailant, that report
is treated as hearsay. Hearsay is defined 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. These
statements are generally considered to be untrustworthy and highly prejudicial to the accused since
the actual speaker of the words is not subject to cross-examination.[67]

The case of dying declaration hearsay, however, constitutes an exception: that is, the recipient’s
report of the victim’s statements is considered to possess the guarantees of trustworthiness ascribed
to direct testimony; albeit hearsay, it is admissible into court for the truth of the matter asserted
therein. Thus, this legal regime presumes that the declarant’s statement is reliable, that the reporter
of the statement transmits this information completely and accurately, and that the court assesses
this information objectively.

As early as the 12th century, dying declarations such as deathbed statements were already “long
understood” by western observers such as Wigmore to be somehow imbued with a “special
trust.”[68] Dying declaration hearsay did not assume its current status in British courts as an
exception to the hearsay rule until early in the 18th century. Typical of the “reasoning” which lifted
the dying declaration above the bar of general hearsay exclusion was the presumption expressed
by the well-worn legal maxim, “No person, who is immediately going into the presence of his
Maker, will do so with a lie upon his lips.”[69] But there are some prima facie objections to the
above rule. Even assuming that statements made by the author of the dying declaration to the
recipient reporter, a transfer of those words from the reporter to the court, and receipt and
assessment of the words by the court are accurate as well as value-free, the rule's rationale is readily
criticized on its face.

4.1 Weak Type of Evidence

A Dying Declaration is a weak kind of evidence because the accused do not get any opportunity
to cross-examine the declarant. Uncrossed version of the declarant is thrust upon the accused and
they could be held guilty of the crime alleged in the declaration. Under these circumstances, the
courts are expected to be very cautious and circumspect in accepting the dying declaration.
Therefore, the dying declarations are weak kind of evidence even though they are based on the
principle that a person would not die with a lie in his mouth. Therefore, if a part of a dying
declaration is deliberately false, it will not be safe to act upon the other part of the declaration
without very definite corroboration.

4.2 Reliability of Statements

The seemingly universally accepted notion that these statements are reliable, according to western
judges and commentators is specious. The universality agreement analysis is a logical fallacy;
simply because courts and commentators agree across time in a particular western tradition does
not prove the tradition's validity and is merely conclusory.

The reliability of a dying statement is suspected. Assuming no difficulty in expression and

interpretation between the author and the recipient, an exact and value-free replication of the
language, untainted, to the court, and an “objective” analysis of that language by the court, the
author's statement may be less than reliable due to the physical stress or the circumstance itself;
or, even if the author of the declaration is cogent, realizing it as a last opportunity, he or she may
color his or her final statements against an innocent.

4.3 Physical Condition of the Declarant

Even if the author of the statement does not intend to misstate, his or her physical condition may
in fact result in a misstatement. For example, “Pain, catastrophic physical calamity, and anguish
may characterize the circumstances under which a declarant makes such statements. Perception,
memory, comprehension, and clarity of expression are likely to be impaired.”[70]

In addition, the declarant may have been using drugs, which may have affected cognition and
perception, and may have been in a state of great pain, which would tend to discredit the
trustworthiness and accuracy of the declaration. In fact, it is more likely that an individual who has
just undergone an attack sufficient to consider death and who is experiencing the stress associated
with such an experience would not be in a physical state that results in a more rational and lucid
condition and thus more reliable statement than otherwise. Beyond these concerns and again
assuming good faith and cogency on the part of the dying individual, if the declarant realizes that
time is short, he or she may, by necessity, give only an incomplete and one-sided version of events.
The circumstances surrounding the declaration alone may result in a less, not more, accurate
picture of the declarant's death.

Further, the party who hears the dying declaration may misunderstand or miscomprehend the
statement due to the stress of the situation or by simple mistake, since “honest mistakes, to say
nothing of passion, prejudice or self-interest might give us a distorted or false statement as to what
the dying declaration was.”[71] Finally, the listener in this circumstance is unlikely to attempt to
seek clarification or qualification of the dying declarant's statements after he or she has uttered the
declaration.[72]

4.4 Different Reaction for Different People

It is a matter of common experiences that even a small or trifle incident has different reaction on
different persons. That is why it is not always easy for the court to weigh and judge as to whether
under the circumstances brought on record by the prosecution, in normal course the accused
concerned could have acted as alleged by the prosecution.

4.5 Cultural Assumptions

The related cultural assumptions that underlie the rule further weaken it. The ideal of a threat of
divine punishment and imperative to speak the truth may simply not exist for those who do not
adhere to such religious sects or social groups that embrace such cultural ideals. Clearly, with no
fear of eternal or other retribution or compunction to speak the truth, the author can with impunity
colour his or her dying statements to falsely incriminate enemies, friends, or anyone he or she
disliked at that particular moment. Similarly, the listener may have an agenda and thus falsify the
declarant's statement: if no other listeners are present, a dying victim uttering a dying declaration
provides a virtually unchecked opportunity for an unscrupulous listener to falsely identify and
potentially convict an innocent party.

CHAPTER 5

JUDICIAL TREND

Time and again the courts in India, be it Supreme Court or High courts, have come up to serve and
explain the ambiguities, if any, in order to comprehend the intent of the legislature, while laying
down the law under Section 32 of the Indian Evidence Act, 1872.

5.1 Dying Declaration not violative of Article 14

The judiciary has given appropriate importance to the appreciation of dying declaration.
In Kalua v. State[73], it was held that dying declaration couldn’t be assailed on the ground that its
provisions are discriminatory, arbitrary or unreasonable as there is no scope for administering oath
and cross-examining the deceased. No question of violation of Article 14[74] of the Constitution
arises. The basic requirement in order to prove dying declaration is that it should be cogent and
convincing evidence and it should be free from suspicion. The question of trustworthiness of the
dying declaration requires deep judicial scrutiny and that is possible only at the stage of the trial.[75]

5.2 Dying Declaration by Rape victims

In State of Assam v. Mahim Barakataki[76], the victim of rape and murder made a Statement. She
died of burns. She made the statement to one of the witnesses while she was under severe pain due
to grievous burns. It was alleged that the accused had committed rape on her and later by pouring
kerosene on her, burnt her alive. The court found the Dying declaration to be truthful and reliable
and thus, admissible. The Hon’ble court held that the conviction could be based on the dying
declaration, which is found to be truthful and reliable.

In Ronal Kiprono Ramkat v. State of Haryana[77], the Deceased was raped by appellant and then
stabbed with kitchen knife on neck and head. The Injuries inflicted by appellant resulted in death
of deceased. Therefore, the appellant was charged for offence under Sections 302 and 376, Indian
Penal Code, 1860. The Trial Court convicted appellant for offences under Sections 302 and
376/511, Indian Penal Code, 1860. The Hon’ble Supreme Court observed that there were no
eyewitnesses to incident and the prosecution mainly relied on oral dying declaration and that the
dying declaration suffered from a number of infirmities and absence of explanation of serious
nature of injuries sustained by appellant raises serious doubt as to very genesis of incident. Fact
that deceased was totally naked probablises theory of intercourse by consent and negatives theory
of rape. The Court concluded that in view of seriousness of injuries sustained by appellant it
couldn’t be said that injuries were self-inflicted. Also dying declaration does not appear to be in
language of deceased and therefore does not inspire confidence. The Hon’ble Supreme Court held
that in view of infirmities, improbabilities and contradictions dying declaration cannot be relied
upon and therefore, the appeal was allowed and the appellant was acquitted.

5.3 Absence of Motive

Absence of motive for causing death and dying declaration not inspiring confidence cannot be
basis of conviction. The absence of motive being proved, the accused cannot be said to have
committed the crime. It is a general principle that a dying man would not falsely implicate any
person, without having due regard to the attendant circumstances and particularly when no motive
is substantiated, it is hazardous to accept the mind of the deceased was free from feeling which
afflict the generality of human beings. Where the deceased having 6 degree burns, could not
possibly have been able to make a kind of intelligible statement, his dying declaration cannot be
relied upon, inasmuch as it does not inspire confidence, in the view of the attendant
circumstances.[78]

But absence of motive in dying declaration is not always fatal to its admissibility. In case of direct
evidence question of motive has little importance.[79] Similarly, where the specific role is assigned
to the named culprits, merely absence of motive in the dying declaration is not sufficient to assail
the conviction based on such dying declaration, particularly where there is nothing on record to
show that the deceased has any motive to falsely implicate the accused.[80]

5.4 Distance of Time

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 statements
would clearly fall within the four corners of Section 32 and therefore admissible. The distance of
time alone on such cases would not make the statement irrelevant.[81] The time factor is not always
the criterion for admissibility and the letters written by the deceased to her relatives during the
period of two years prior to her death by suicide complaining about the systematic ill treatment,
cruelty and instigation leading to Section 32 of the Indian Evidence Act, 1872.

But where the testimony as to the alleged cruelty is based on the statement of the deceased uttered
many months prior to her death, held such statement of the deceased does not fall within the
provisions of Section 32(1) of the Indian Evidence Act, 1872 and the same is not admissible in
evidence. The expression ‘soon before her death’ used in the substantive part of Section 304B[82],
Indian Penal Code, 1860 and Section 113B[83], Indian evidence Act, 1872 is clubbed with the idea
of proximity test. Ne definite period has been indicated and the expression ‘soon before’ is not
defined. A reference to Section 114[84], Indian Evidence Act, 1872 (illustration) is relevant. It lays
down that a court may presume that a man who is in possession of stolen goods ‘soon after’ the
theft is either the thief or has received the goods knowing them to be stolen, unless he can account
for his possession.

To raise the presumption of dowry death, the prosecution must prove that soon before her death
the woman had been subjected to cruelty or harassment in connection with any demand of
dowry.[85]

5.5 Brevity indicates Truth

The omission of certain facts does not render dying declaration inadmissible. In Jaya Ram v. Sate
of Tamil Nadu[86], their Lordships of Supreme Court laid down that when the person who made
the dying declaration before the Magistrate was in severe bodily pain and the words were scarce,
his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who
has stabbed him. The very case, far from being a suspicious circumstance, was an index of its
being true and free from the taint of tutoring.

A dying declaration containing a few words would not warrant its rejection on that ground. A
dying person with fatal injuries must be in severe agony. The groaning utterances of a dying person
in grip of dreadful agony cannot be judged by the fullness of the particulars.[87]In Dalbir
Singh v. State of Punjab[88], their Lordships of the Supreme Court observed:
 “In any event the dying declaration in our opinion, could not be discarded, merely on the
ground that it does not give precise description of all the instruments of offence and also the precise
description of the manner in which the injuries were inflicted and on the basis, therefore, it could
not be contended that this dying declaration should be rejected as it is not consistent with the
medical evidence when substantially it is corroborated by medical evidence and also corroborated
by the testimony of eye-witnesses.”

5.6 F.I.R. admissible as Dying Declaration

A first information report lodged by a deceased is admissible under Section 32(1) as the statement
of a person relating to the circumstances of the transaction, which resulted in his death.[89]First
information report and statement under Section 161[90], Cr.P.C., during investigation of a crime
are also sometimes treated as dying declaration but such dying declarations stand on a different
footing. They require to be corroborated by some additional evidence.[91]

A report lodged by the deceased under Section 323[92], Indian Penal Code, 1860, can be treated as
a dying declaration but where there was unexplained delay in the lodging of the F.I.R. and not
lodged in the original words uttered by the deceased, it was held that it was not safe to place
reliance on the dying declaration of the deceased.[93]

5.7 Unauthorized persons must be kept away

In Khushal Rao v. State of Bombay[94], a clear direction was given by the Supreme Court that while
the declaration is being recorded no unauthorized persons should be allowed to crowd round the
deponent:
“The bounden duty of every one is to see that every possible step is being taken to ensure
that no influence is brought to bear on the declarant and he is not prompted or aided in making a
declaration.”

Undoubtedly, it is essential to show before admitting the dying declaration that the dying
declaration was made when the make was in a position of his faculties to enable him to make such
dying declaration, that he should be free from any prompting or external influence.

CHAPTER 6

CONCLUSION & SUGGESTIONS

Hearsay evidences are not given any weightage in the courts because the person who is giving this
evidence is not telling his experiences but that of another person and who cannot be cross examined
to verify the facts. Dying declaration is an exception to this rule because if this evidence is not
considered very purpose of the justice will be forfeited in certain situations when there may not be
any other witness to the crime except the person who has since died. Sometimes it the best evidence
in such situations. Such statements are relevant whether the person who made this was expecting
death or not.

As a piece of evidence, dying declaration is now fairly crystal clear by judicial decisions. The
importance of dying declaration as a piece of convincing evidence is increasing with the escalation
of cases, wherein the Dying declaration laid the foundations for prosecution. Notwithstanding that
there may be no direct and ocular evidence to prove a crime, a dying declaration may be self-
speaking and prove much more than eye-witnesses could depose. Truly said, men may lie but not
the circumstances. It is as good as any other piece of evidence and it is sacrosanct.

The evidence with regard to a dying declaration must be very carefully and critically scrutinized,
as the accused has no opportunity to challenge such statement by way of cross-examination. Great
sanctity is attached to the words of a dying man because a person on the verge of death is not likely
to tell lies, but the court must be satisfied that the deceased was in a fit state of mind to make the
statement. The evidence furnished by the dying declaration must be considered by the court just
as the evidence of any other witness, though undoubtedly some special considerations arise in the
assessment of dying declaration, which do not arise in assessing the value of statement made in
court by a person claiming to be a witness of the occurrence.

A dying declaration can be accepted only if the court feels certain that the witness before the court
has given the evidence is thoroughly reliable and that there is no infirmity in his evidence. The
court must be circumspect and cautious in evaluating the worth of such statements. It has to be
established beyond any reasonable doubt that the maker of the dying declaration had the
opportunity to identify the assailants. The truthfulness, reliability and the acceptability of the dying
declaration has to be adjudged in the light of the attendant facts and circumstances of each case
and it has to be subjected to strict scrutiny like any other piece of evidence, either direct or
circumstantial.

It is the duty of the person recording a dying declaration to take every possible question to ensure
the making of a free and spontaneous statement by the declarant without any prompting, suggestion
or aid from any other justice. The Judicial Magistrate, medical officer and police officials must all
realize that the welfare of the injured person should be their first consideration, and in no
circumstances must be proper medical treatment be impeded or delayed simply to obtain the dying
declaration of the injured person.

It has been accepted, that there is a tendency among persons dying to implicate all their enemies
who may have had nothing to do with the offence. The courts in India have, therefore, accepted
that one must be very careful in relying on dying declarations. But besides such a precaution, there
are a lot of other safeguards to make sure that dying declaration recorded is credible enough and
is not cast by any shadow of doubt.

In order to bring dying declaration to a higher footing as it is now, the provision for compulsory
audio and video recording of the dying declarations should be introduced and made mandatory.
This would provide more credibility to the dying declaration and confusion as to the name of the
accused or any other particulars, which are missed due to the fact that the declarant uses symbols
or gestures to put forward the declaration, would be easily catered to.

Ordinarily, a dying declaration is entitled to much weight, considering the situation that it was like
a message from the grave. The possibility of imminent danger gives sanctity to the whole matter.
At the same time, however, the courts should not take it as a rule of universal application that death
is the surest rectifier. Human Psychology in spite of some modem advancement remains buy and
large an uncharted region and fathomless sea. The shocks and responses of the different persons
vary according to the mental frameworks of the persons concerned. If circumstances are placed,
which tend to show that the dying declaration would not be true, then the court also should not
confidently rely on the dying declaration.

BIBLIOGRAPHY

Books

1. Brewer, Scott, Logic, Probability, and Presumptions in Legal Reasoning, Routledge, London, 2011.

2. Gupta, Dr. H.R., Desai’s Law Relating to Confession and Dying Declaration, Dwivedi Law Agency,
Allahabad, 2006.

3. Lal, Batuk, The Law of Evidence, Central Law Agency, Allahabad, 2012.
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2002.

5. Sarkar, S.C., Sarkar’s Commentary on the law of Evidence, Dwivedi Law Agency, Allahabad, 2007.

6. Sharma, Anil Kumar, S.K. Shanglo’s Law of Dying Declaration, The Law Book Co. (P) Ltd., Allahabad,
1996.

7. Stephen, Sir James Fitzjames, A History of Criminal Law of England, Macmillan and Company, London,
1883.

8. Tripath, A.K., Supreme Court on Law of Evidence, Vaibhav Law Publications, Allahabad, 2007.

9. Wigmore, John Henry, Evidence In Trials At Common Law, Little brown and Company, New York, 1974.

Journals

1. Liang, B. A., Lies on the Lips: Dying Declarations, Western Legal Bias, and Unreliability as Reported
Speech, Law Text Culture 5(2) (2000).

2. Orenstein, Aviva, Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence,
University of Illinois Law Review (2010).

Statutes

1. Code of Criminal Procedure, 1973.

2. Indian Penal Code, 1860.

Indian Evidence Act, 1872.

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