Criminal Law - Dying Declaration

Introduction

A Dying Declaration means the statement of a person who has died explaining the circumstances of his death. It can be said to be a statement made by a mortally injured person, indicating who has injured them and/or the circumstances surrounding their injury. The injured is aware that he/she is about to die and while the declaration is hearsay, it is admissible since it is believed that the dying person does not have any reason to lie.

Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie." "A man will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying admittance in evidence of dying declaration. "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 almost a sucrose not status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a 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 any corroboration"

Sub-section (1) of Section 32 of the Evidence Act, any statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, would constitute relevant facts. If as a result thereof, the Court is satisfied that the statement made by a person who is now dead is relevant, the same becomes admissible in terms of Sub-section, (1) of Section 32 of the Evidence Act.

Admissible

It is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the Courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration.

The basic infirmity committed by the High Court is in assuming that for a dying declaration to be admissible in evidence, it is necessary that the maker of the statement, at the time of making statement, should be under the shadow of death. That is not what Section 32 of the Indian Evidence act says. That is not the law in India. Under Indian law, for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death and should entertain the belief that his death was imminent. The expectation of imminent death is not the requirement of law.

Unless the statement of a dead person would fall within the preview of Section 32(1) of the Indian Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible (written or oral), the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question.

Evidential value of the writings contained in diary of deceased-wife is that of a dying declaration. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of the death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband.

There is no format as such of dying declaration neither the declaration need to be of any longish nature or neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration bring about an adverse impression and create a suspicion in the mind of the Court since dying declarations need not be drawn with mathematical precision. The declarant should be able to recollect the situation resulting in the available state of affairs.

Accomplice

Dying Declaration cannot be equated with the evidence of an accomplice or the evidence furnished by a confession as against the maker.

Abrupt Ending/ Incomplete

When the dying declaration abruptly ends, due to deteriorating condition of the patient then this cannot affect the evidentiary value of the dying declaration since it is complete in so far as the appellant’s role is concerned.

Before Police

Better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting a better method.

The practice of Investigating Officer himself recording the dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of the case.

Before Magistrate

There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when it is recorded by a magistrate, there is no statutory form for such recording. The evidentiary value depends on facts and circumstances of each particular case. The person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification of doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. This is a well settled rule now, by this Constitution Bench judgment of the Supreme Court.

Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration.

Condition of Patient

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 one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent persons falsely. When the dying declaration is recorded, the person who records the statement is consciously making the statement understanding the implications of the words he uses and the responsibility of the Court is greater in holding that it was so made when in fact it is found that the man dies a few minutes afterwards.

Where the medical testimony is clear that the deceased could not make the statement (dying declaration) after the receipt of injuries, the ocular version be disbelieved.

Corroboration

It is well settled that dying declarations shall have to be dealt with due care and upon proper circumspection. Though corroboration thereof not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence.

It is rarely found in a criminal case that the description of the incident and injury described in the dying declaration gets full corroboration from the medical evidence contained in the injury report and the post-mortem report. In such cases, still the dying declaration can be relied upon.

Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

Declarant Survives

It is trite law that when the maker of a purported dying declaration survives, the same is not statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Cr.P.Code. It can be used under section 157 of the evidence Act for the purpose of corroboration and under Section 155 of the evidence Act for the purpose of contradiction.

English Law vis-a vis Indian Law

There is a distinction between the evaluation of a dying declaration under the English Law and that under the Indian Law. Under the English Law, credence and the relevancy of a dying Declaration is only where a person making such a statement is in a hopeless condition and is expecting imminent death. So under the English Law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued.

Under the Indian Law, the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English Law, the admissibility rests on the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and a virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations 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 only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of Indian Law, while testing the credibility of such dying declaration, weightage can be given, of course, depending on the other relevant facts and circumstances of the case.

Infirmities

Where the testimony of the eye-witness is inconsistent with the medical evidence, it is unsafe to rely upon such dying declaration as when the dying declaration according to the prosecution has been made at two different places but from the doctor’s evidence it is found that it was improbable that the deceased would have been in a position to walk or to speak, the dying declaration be disregarded.

Mere non-mention of the names of certain eye-witnesses in dying declaration will not diminish the value of their testimony.

When there are serious discrepancies in the account given by the witnesses, it is unsafe to place reliance on the dying declaration.

If the evidence of eye-witnesses was to be rejected on the ground that it was inconsistent with the dying declaration then it would, in the circumstances not necessarily follow that the dying declaration was also unreliable and unworthy of credence.

If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis of conviction.

Necessity

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.

Oath

The general principle on which this species of evidence is admitted is that they are declarations 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; 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 a Court of justice.

Oral Dying Declaration

It can be relied upon. When the doctor was available there was no justification for the Police officer to record the dying declaration.

Test of Reliability

Though in law there is no bar in acting on a part of the dying declaration, it has to pass the test of reliability. Section 32(1) of the Indian Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross examination it is not creditworthy. A dying declaration made by a person on the verge of his death has a special sanctity as that solemn moment 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 credibility 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 basis of conviction.

Two Dying Declarations

When there are two dying declarations and there was inconsistency between them and there was no other evidence evidence to prove the prosecution case, it was not safe to act solely on the said declarations to convict the accused persons.

Conclusion

A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person's death comes into question, becomes admissible under section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.