LAW OF EVIDENCE
Chapter 3.1 Meaning Content & Scope
1.1 Introduction
"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 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"--is the statement of law summed up by the Supreme Court in Kundula Bala Subrahmanyam v. State of A.P. , (1993) 2 SCC 684) and reiterated in Laxmi v. Omprakash (AIR 2001 SC 2383. ) The Supreme Court further added – ‘such a statement, called the dying declaration, is relevant and admissible in evidence 'provided it has been made by the deceased while in a fit mental condition'.
The above statement of law, by way of introduction to this chapter is the crux of the whole law of evidence regarding dying declaration. The law has become now well settled. Dying declaration is admissible in evidence. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence.
1.2 Meaning of Dying Declaration
In layman’s language, we can say that dying declaration is the statement made by a person who is dying. But in legal sense it has got a different meaning. It is not that all the statements made by a dying person can be termed as dying declarations. It is only that statement of the deceased, which he made before his death and which shows the cause of death or the circumstances leading to his death can be termed as dying declaration, provided the death of that person comes in question before a judicial authority.
1.3 Dictionary Meaning of Dying Declaration
None of the language dictionaries define the word ‘dying declaration’ jointly but the words dying and declaration has been shown separately the literal meaning of which a declaration or statement which is going to die. But if we go by these meanings the whole meaning of dying declaration will loose its significance. Therefore this meaning cannot be assigned to the term dying declaration.
1.3 Meaning given by Law Lexicons
Wharton’s Law Lexicon, quoting from R v. Perry (1909)2 K.B. 697 has stated about dying declaration as follows: -
‘Deathbed or dying declarations are constantly admitted in evidence. The principle of this exception to the general rule is founded partly on the lawful situation of the dying person, which is considered to be as powerful over his conscience as the obligation of an oath, and partly on a supposed absence of interest in a person on the verge of the next world, which dispenses with the necessity of cross-examination. But before such declaration can be admitted in evidence against a prisoner, it must be satisfactorily proved that the deceased, at the time of making them, was conscious of his danger and given up all hopes of recovery.'
Black’s Law Dictionary defines dying declaration as follows: -
Dying declaration means the statement made by a person who believes that he is about to die, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death or in reference to the person who inflicted such injuries or of a person who is charged with or suspected of having committed them. Such statements are admissible in evidence as an exception to the hearsay rule in a trial for homicide and occasionally, at least in some jurisdiction in other cases where the killing of the declarant is the crime charged to the defendant.
The dying declaration is thus the statement by the person as to cause of his death or as to any of the circumstances relating to death. The words “dying declaration” mean a statement written or verbal of relevant facts made by the person who is dead. Statements made by a person who believes he or she is about to die, concerning the cause or circumstance surrounding his or her impending death.
1.5 CONTENT AND SCOPE:
Under common law, a statement made by a person on the point of death is admissible in evidence even if it is hearsay. That is, if X told Y that Z had stabbed him, then if Y told a court under oath what X had said, this may be admissible evidence against Z. The reason this is acceptable, while other forms of hearsay are not, is that it is assumed that a person who is dying, and knows this to be the case, is unlikely to lie. To be admissible, the declaration must be made by a person who has a genuine believe that death is imminent. The believe need not necessarily be reasonable, and he may subsequently recover. Of course, if he does then he would be expected to testify himself.
It becomes relevant under section 32 (1) of the Evidence Act. It is an exception to the rule of hearsay and makes admissible the statement of the deceased whether the death is homicidal or suicidal provided the statement relates to the cause of death or exhibits circumstance leading to his death. Greater solemnity and sanctity are attached to the words of a dying man because a person on the verge of his death is not likely to tell lies or to concoct a case as to implicate an innocent person but the court has to be on the guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court shall also be satisfied that the deceased was in a fit state of mind to make the statement after he had a clear opportunity to observe and identify the assailants. Once the court is satisfied about its authenticity and voluntariness, the court can found a conviction on the basis thereof in the absence of any corroboration.
If the statement has been made when the deceased was under the expectation of death, it becomes a dying declaration in evidence after her death. Nonetheless, even if she was no where near the expectation of death, still such statement would become admissible under section 32(1) of the Indian Evidence Act, 1872; though not as dying declaration as such, provided it satisfies one of the two conditions set forth in section 32(1) of the Act.
The phrase 'dying declaration' is not used in s 32 of the Indian Evidence Act. The head note of the relevant section reads as cases in which the Statement of Relevant Fact by Person is who is dead or cannot be found etc, is relevant. The section as a whole deals with the relevant facts originating from a person who is dead or who cannot be found or who has become incapable of giving of evidence or whose attendance cannot be procured without an amount of delay or expense, which, under the circumstances of the case, the court considers, unreasonable. But, while referring to s.32 (1) the phrase is normally used to explain the essence of the provision.
The phrase is quite popular because of judicial usage and endorsement in a number of cases, which continues even today. Seemingly, the attributed significance to the dying declaration as a piece of evidence is because of its hearsay character. Speaking on Indian context, due to unabated occurrence of heinous offences like dowry related deaths and homicides, the dying declaration as a very effective means of proving complex and hidden facts has acquired phenomenal importance.
Dying declaration considered as hearsay because the person who made such a statement is not available before the court to depose. In addition, the person who heard from such a dead person and who appears before the court to depose the facts in question is not in a position to vouchsafe whether those facts which he heard, from the dying person are true or not.
At the outset, it is necessary to note, that a dying declaration as envisaged by s.32(1) 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 not necessary that he or she should know that there is impending death. In other words, at the time of making such declaration, there is no legal mandate that such person must entertain expectation of death.
Moreover, dying declaration can be considered as relevant evidence in both criminal and civil proceedings whenever the cause of his or her death comes into question. However, it is settled law that it is not 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. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered.
This provision has been made by the legislature; advisedly; as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the legislature, that test is supplied by a solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such serious and solemn moment, that person in not expected to tell lies and secondly; the test of cross-examination would not be available. Thus, a statement made by a dying person as to the cause of death, has been accorded by the legislature; a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that the circumstance would affect the admissibility of the statement; but only its weight. It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away; or because the statement has hot been properly recorded.
It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. 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 by 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 for conviction. In the case at hand, the dying declarations are five.
However, it is not the number of dying declarations, which will weight with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.
The admissibility is founded on principle of necessity.
A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused nor therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinize all the relevant attendant circumstances. [See Tapinder Singh v. State of Punjab – 1971 (1) SCJ 871] One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it.
In Bhagwan Das v. State of Rajasthan - AIR 1957 SC 589] the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a (SIC)con charge of murder. In Kako Singh @ Surendra Singh Vs State of M.P. -AIR 1982 SC 1021 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab - AIR 1983 SC 554 this Court found that the deceased could not possibly have bene in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for nay purpose and had to be excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present.
30. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was o other alternative left except the statement being recorded by the investigating officer or the police officer later on relied on as dying declaration. In mMunnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199, this Court observed - "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 an investigation ought not to be encouraged". The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof 'that better and more reliable methods of recording dying declaration of injured person' were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.
CHAPTER –02
ENGLISH LAW AND DYING DECLARATION
A dying declaration under English Law means the statement of a person who has died explaining the circumstances of his death. According to English Law, the statement is relevant only when the charge is that of murder or manslaughter. In cases of homicide, statements made by a person, since deceased, are admissible to prove the cause and circumstances of the man's death. Such statements are called 'dying declarations'. But such state¬ments under the English law should be made when he was in "settled, hopeless expectation of imminent death". In Halsbury's Laws of England, the law as to dying declaration has been stated thus¬:
Upon the trial of an indictment for murder or manslaughter, and only in such cases a verbal or written statement made by the deceased person whose death is thus subject of the charge although that statement was not upon oath and was not made in the presence of the defendant, is admissible in evidence either against or for the defendant, provided that it was made at a time when all hope of living had left the mind of the declarant that is, the declarant must have entertained a settled hopeless expectation of death, death being imminent or impending, but he need not have been expecting immediate death. So Many cases have been decided which illustrate the application of this principle, and show in what circumstances dying declarations have been held to be admissible or inadmissible in evidence. Dying declaration is nothing but a statement, written or oral, made by a person who is dead. Such statement is relevant under section 32.
Their 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 virtuous man under oath—Nemo moriturus praesumuntur mentiri. "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 induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creat¬ing an obligation equal to that which is imposed by a positive oath administered in a court of justice"
The fact that the deceased believed that his death was impending may be shown by statements made by him at the time, or by evidence that his physical condition or the nature of the wounds inflicted upon him was such that he must have so believed A dying declaration, which on the face of it is incomplete, is inadmissible. The question whether the deceased had such a belief in impending death as to make a declaration admissible as a dying declaration is for the judge and not for the jury. A statement made in the first instance under such circumstances as to render it inadmissible as a dying declaration may be admitted as evidence, if it is afterwards repeated by the deceased or by some other person at his request and assented to by him under circumstances which would have rendered it admissible, if it had been then made for the first time. It is not objection to the admissibility of a dying declaration that it was made in answer to leading questions, though that fact may affect its weight as evidence. The constant reiteration of the words "I am dying" by a woman who had taken poison was held to be insufficient "as the expression of the real idea of impending death" [R v. Abbot, 67 JP 151] but "I am dying, look to my children", was held sufficient [R v. Goddard, 15 Cox 7],
The pales of a considerable interval between the making of the declaration and the death of the deceased does not render it inadmissible if at the time when it was made he had the apprehension that death was impending. A dying declaration by a person who is, by law, incompetent, as a witness is inadmissible. The Indian law on the subject differs materially from the English rule.
2.1 DISTINCTION BETWEEN ENGLISH AND THE LAW IN INDIA
The first clause is widely different from the English law upon the subject of dying declaration, according to which: (a) this description of evidence is not admissible in any civil case; and (b) in criminal cases only in the single instance of homicide, that is, murder or manslaughter, where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declaration. Both in England and America, evidence of this description (dying declarations), is not admissible in any civil case and in criminal cases it is not admissible upon charges other than homicide; or as to homicides other than that of the declarant. On the other hand, under the Indian Evidence Act the statement is relevant whatever may be the nature of the proceeding, in which the cause of the death of the person who made the statement comes into question. Further, according to English law, certain conditions are required to have existed at the time of declaration, namely, it is necessary that the declarant should have been in actual danger of death; secondly, that the should then have had a full apprehension of his danger and lastly, that death should have ensued. The existence of the latter condition is of course as necessary under that Act as under the English rule, inasmuch as the statement is admissible only in cases in which the cause of the death of the person who made it comes into question. But, under this Act, the statement is relevant whether the person who made it was or was not at the time when it was made, under expectation of death.
Under the Indian Law for a declaration to be relevant under s 32(1), it is not necessary that the declaration should have been made when the person making the same was in actual danger of death and had given up all hope of recovery at the time when he made the declaration. [Poolakkal Klinchli v State 1986(2) Crimes 225 (Ker) (DB)] Therefore, whether the declarant was or was not in actual danger of death, and knew or did not know himself to be in such danger, are considerations, which will not affect the admissibility of this kind of evidence in India. But these considerations ought not to be laid aside in estimating the weight to be allowed to the evidence in particular cases. Under the Law which was in force prior to this Act (s 371, Act 25 of 1861) s 29, Act 2 of 1865, and which with one modification relating to the entertainment by the deceased of hopes of recovery was similar in this respect to the English law, it was held that before a dying declaration could be received in evidence, it must be distinctly found that the declarant knew or believed at the time he made the declaration, that he was dying or likely to die. Of course, before the statement can be admitted under this section, the declarant must have died. Where a person making a dying declaration chances to live, his statement cannot be admitted in evidence as a dying declaration, [Mati Singh v State AIR 1964 SC 900] though it may be relied on under s. 157 to corroborate the testimony of the complainant when examined in the case. The statutory provision in s. 164 Criminal Procedure Code should be followed if the statement in inculpatory and in the nature of a confession.
Hence, under the English Law, it is essential to the admissibility of dying declaration that the declarant must have entertained a settled hopeless expectation of death. But he need not have been expecting immediate death. Indian law does not put any such restrictions. It is not required under Indian law that the maker should be under the expectation of imminent death, nor is it restricted to the case of homicide only. Before a dying declaration may be admitted, it must be proved that the maker is dead. If the maker survives, it may be used to corroborate or contradict his statement.
2.2 SUMMARY:
(1) Under the Indian Law of Evidence ,a dying declaration is relevant whether the person who made it was or was not,at the time when it was made under expectation of death that is, it is immaterial whether there existed any expectation of death at the time of the declaration. In a Calcutta case it has been observed that the necessity of recording a dying declaration arises only when the hopes of life are given up [Tehal v. S, AIR 1979 SC1347]. . It is common sense that there is no need to record dying declara¬tion until that stage is reached or it is apprehended that a person will not survive.
1. However, in English law the position is different, it is held that before a dying declaration was admitted it should be proved that the person making it knew that he was dying or believed himself to be in danger of approaching death.
2. The admissibility of dying declaration is not confined to the case of homicide
only, but it would be admissible, whatever the charge may be, provided the cause of
death comes under enquiry: In India in a charge of rape, a woman's
dying declaration is admissible as to the circumstances of the transaction resulting in
her death. In England a dying declaration is not admissible to prove rape [R v. New¬
ton, 1 F & F 641], or robbery [R v. Lloyd, 4 C & P 233]. The evidence of this description (dying declarations), in English law is not admissible upon charges other than homicide; or as to homicides other than that of the declarant.
3. A dying declaration is admissible in this country in civil suits, under the terms,
"whatever may be the nature of the proceeding in which the cause of death comes intoquestion." Thus in a suit for damages for death caused by a railway accident due tothe negligence of the company, the declaration of the passenger killed, as to the cause of his death is admissible. Under English law dying declaration is not admissible in any civil case and in criminal cases it is not admissible upon charges other than homicide;
These are the principal points of distinction between English and Indian laws. Therefore, English authorities should be very cautiously referred to in deciding cases. A dying declaration under the Act assumes a character very widely different from what it is under the English law, as it is relevant under it whether the person who made it was or was not when it was made under expectation of death, the rule of English law restricting the admissibility of dying declarations to cases of homicide had no application in India. The nature of proceeding in which the cause of death comes into question need not necessarily be a charge of murder or homicide. It may be a charge of a different nature or it may be a civil action
It is submitted that although the Act has made a great departure from the English law in regard to the conditions of admissibility of dying declarations, the greatest cau¬tion must be exercised in considering the weight to be given to this species of evi¬dence on account of the existence of many circumstances which may affect their truth and the principles of English law should be adhered to as far as possible. Nothing short of a settled, hopeless expectation of imminent death in the mind of the declar¬ant, would induce an English judge to admit such evidence. Even a sense of impend¬ing death does not always rouse the same feelings in every one and there may be per¬sons who cannot get rid of the passions of anger or revenge even in the moment of death.
It should be borne in mind that such a statement is not an oath; neither can there be any cross-examination. Moreover the statement is generally made at the time when exhaustion and strong physical pain deaden all feelings and confuse the declarant’s intellect. Hence when dying declarations are received, their weight must depend greatly on the circumstances under which they are made. Their creditability and value will also vary with the circumstances of each particular case and the nature of the recording.
CHAPTER –03
TYPOLOGY : FORMS OF STATEMENT
A statement though not defined in the Act means something that is stated. The element of communication to another person is not necessary before something is stated can be treated as a statement. The declaration may be oral or written. It cannot be rejected merely on the ground that it was not reduced to writing. The evidence of a witness who heard it made may prove it. It cannot be treated as a deposition unless made in the presence of the accused and before a magistrate. It is settled law that there is no legal requirement that a dying declaration must necessarily be recorded in question-answer form. A dying declaration recorded in an informal manner and as a narrative is fully admissible and is a relevant piece of evidence. Any adequate method of communication, whether by words or by signs or otherwise, will suffice provided the indication is positive and definite, and seems to proceed from an intelligence of its meaning
3.1 ORAL DYING DECLARATION
‘Oral’ means by words. It is not necessary that the dying declaration shall be in a written form or a question answer form. Where the dying declaration is oral , the exact words stated by the deceased to the witness are of utmost importance. 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 the basis of conviction of an accused.
Where dying declaration is oral and recorded, and is found true and trustworthy, it can form the basis of conviction. An oral dying declaration alleged to have been made by the deceased, should be scrutinised cautiously. Where oral dying declaration gets corroboration from written dying declaration, it can form the basis of conviction. A dying declaration recorded by a magistrate, carries mush weight, as it stands on a much higher footing than a dying declaration dependent upon oral testimony, which is fallible to all the infirmities of human memory.
An oral dying declaration that creates a doubt is not worthy of credence. Where an oral dying declaration is corroborated by the testimony of more than one independent witnesses, 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. Where the evidence regarding the dying declaration is reliable and believable, even an oral dying declaration can form the basis of conviction.
Where only close relations arrived on the spot on hearing the shout of the victim and no independent witness arrived on the spot, oral dying declaration made to the relation-witnesses was believed and the accused was convicted. Even when the dying declaration made to the doctor has not been recorded in the form of question and answers and in the words of the declarant, the dying declaration can be treated as oral testimony by the deceased as to the cause of his death and the circumstances of his transaction which resulted in his death, thus becomes a relevant fact when the cause of death of deceased is in question.The dying declaration of oral nature is generally considered a weak type of declaration.
STATEMENT BY SIGNS AND GESTURES
Signs made by an injured person either by a nod of the head to indicate assent or by the sign or motion of fingers or hand in answer to questions put to him for finding out the identity of the individual causing the injury amounted to verbal statement within the meaning of this clause. A reply made by signs, by a person unable to speak, in answer to a question put to him, taken together with the question amounts to a verbal statement.
This was laid down by the Full Bench of the Allahabad High Court in Queen- Empress v. Abdullah [I.L.R. (1185) 7 All.385] where the throat of the deceased girl was cut and she being unable to speak indicated the name of the accused by the signs of her hand, thatw as held to be relevant as dying declaration
Where a person was tried for the murder of one D. The deceased had been questioned by a police officer, a magistrate and a surgeon; the deceased was unable to speak, by reason of a wound in the throat but was conscious, and able to make signs. Evidence was offered and admitted to prove the question put to D, and the signs, which she had made in answer to such questions. The evidence was held to have been rightly admitted, as the questions and the signs, taken together might properly be regarded as a 'verbal statement' within the meaning of this section.
Dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value. But though the gestures may be admissible, it has been held that the opinion of witnesses as to the meaning of the gestures is not. It is for the court to determine what they mean. In Mockabee v. Com 78 Ky 382 (Am), Hines, J., stated that Dying declarations are not necessarily either written or spoken . any method of communication between mind and mind may be adopted that will develop the thought, as the pressure of the hand, a nod of the head or a glance of the eye. Hence answering by nodding the head, pointing with a finger are admitted by the court as dying declarations. In Chandrasekhara v. R A.I.R 1937 PC 24, it was stated that a nod of assesnt in answer to a question whether a certain individual had inflicted the fatal cut made by a person unable to speak but fully conscious and able to understand what was said, clearly constitutes a verbal statement. This case closely resembles the case of a person who is dumb and is able to converse by means of a finger alphabet. Evidence of this character must be received with caution. Evidence as to signs made by the accused may necessarily be given in order that it might be understood in what circumstances and context the vital question came to a little weight. Evidence of signs of an ambiguous character ought not to be admitted at all and in many cases is admissible thought it might be of little weight.
It is essential that what actually took place should be truly recorded and the statement should show on the face of it the questions put and the nature of signs made in reply. Where the signs were not described more particularly than by stating that they were by waving of the hands and the movement of the head, It is very doubtful whether such a dying declaration can be admitted
WRITTEN DYING DECLARATIONS
The statement of a deceased person in document is known as dying declaration in writing. It is seen in very few cases that there comes before the court any dying declaration written by the deceased. It is because the condition of the deceased, most of the times is very sensitive and serious where he is not really in a state or in a position to write down the causes and circumstance leading to his death or condition. It is because of this that the practice of oral dying declaration and by gestures and signs was encouraged and admitted by the courts.
Letters written by a deceased disclosing the circumstances and cause of his or her death is also admissible under section 32(1). Moreover, a particular document which is the copy of the original is also admissible under this section as a relevant fact and also as an admission under section 21 of the Indian Evidence Act.
CHAPTER –04
NATURE AND REQUISITES OF DYING DECLARATION
A dying declaration is admissible under section 32 of the Indian Evidence Act,1872, only in cases in which the cause of the declarant's death comes into question. The nature of the proceedings in which the cause of his death comes into question need not necessarily be a charge of murder or homicide. It may be a charge of murder or homicide, or rape or dacoity etc. It may be a charge of a different nature or it may be a civil action as per second para of cl (1).
The only material point is that the cause of death must come into question irrespective of the nature of the proceeding in which it comes into question. A dying declaration may be that on a final consideration of the evidence, the cause of death is found to be not connected with the injuries caused; but the test is not what the final finding in the case is, but whether the cause of the death of the person making the statements comes into question in the case. Nevertheless, whatever be the nature of the proceeding, the cause of the death of the declarant must be brought into question
4.1 STATEMENT MUST BE COMPLETE
Whatever the declaration may be, it must be complete in itself, for, if the dying man appears to, have intended to qualify it by other statements which he is prevented by any cause from making, it will not be received. But where the dying declaration, though incomplete otherwise, by reason of the deceased not being able to answer further question, but is complete so far as the accused having murdered the deceased was concerned, it can be relied upon by the prosecution.[ Abdul Sattar v. State of Mysore AIR 1956 SC 168]. The statement offered must not be merely a part of whole as it was expressed by the declarant; it must be complete as far as it goes. But it is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it.
Thus if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly short of what the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of a fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a potion of what he might have been able to tell
The dying declaration need not be exhaustive and disclose all the surrounding circumstances. It cannot be ruled out entirely because of an omission to refer to a particular circumstance of the transaction nor can any argument be built upon what the declarant has not said in his declaration .The deceased need not necessarily cover the whole incident or narrate the entire history of the transaction. Due to suddenness of attack, poor visibility or physical incapacity at the time of making statement the victim may not be able to recapitulate the entire incident or to narrate it at length.
In fact many a time copiously worded or neatly structured dying declarations excite suspicion of tutoring. Administration by no means requires that the extra-judicial statement must, in order to be a full account of the entire res gestae, properly so called of the fatal meeting. What is demanded is that the declarant should be shown, or rationally assumed to have said all, which he intended to say on the topic which he has spoken about. No modification which the speaker regarded as essential to the accuracy to the accuracy of his statement can properly be omitted. Should there be any reasonable ground for believing that some such qualification has failed to appear, the dying declaration will be rejected as incomplete.
Law does not hence require that the maker of the dying declaration must cover the whole incident or narrate the case history. The details contained in any statement, depend upon the capacity for observation of the person making the statement, his anxiety to mention detains and the manner in which questions are put and answers elicited. It may be that in certain situations the very wreath of detail in a statement attributed to a dying man may arouse suspicion. On the other hand, the circumstance that a statement contains a wreath of detail cannot necessarily lead to the inference that the statement is a fabricated one. [Tehal Singh v State of Punjab AIR 1979 SC 1347]
The dying declaration gave a very detailed and graphic narration of the entire history of the case, starting from the motive, the enmity and the minutest features of the assault excluding the individual acts committed by the accused. It is impossible in such a case to believe that that the deceased even if conscious would have made such a detailed statement. This statement smacks of concoction and falsification, hence the dying declaration is to be included in such a case. [Mohar Singh v. State of Punjab AIR 1981 SC 1578].
In the dying declaration, the deceased has categorically men¬tioned the name of his own son as assailant; has also stated that he was stabbed twice with knife; the motive for stabbing him; the time and place at which he was stabbed. The declaration is to be accepted as true even though there is no medical opinion that the deceased was in a fit state to make the declaration. [Mohd. Azzezuddin v. State of A.P. 1985 Cri.L.J. 336]
An incomplete dying declaration is inadmissible. So when it could not be completed because of some or the other reason setting in it is inadmissible and no portion of the dying declaration should be allowed to be admissible. But though death may stop the answer to further questions, if the statement so far made by the deceased implicates the accused quite categorically and definitely, the dying declaration though otherwise not complete is admissible.
4.2 DETAILS IN DYING DECLARATION
A dying declaration does not need to contain details to merit its acceptance. The shortness of the statement itself appears to be the guarantee of its truth. Where a dying declaration is exhaustive and coherent one, containing every details of prosecution story, it smacks of concoction and fabrication. [ S.D. Ojha v. State of Bihar AIR 1979 SC 1505]
In Somnath v State of Haryana, [AIR 1980 SC 1226] their Lordships of the Supreme Court observed:
Dying declarations are groaning utterances of a dying woman in the grip of a dreadful agony, which cannot be judged by the standards of fullness of particulars, which witnesses may give in other situations. To discredit such dying declarations for shortfalls here or there or even in many places is unrealistic if basically there is credibility.
A dying declaration is not to be discarded for lack of details of the occurrence or on account of brevity of the statement when the deceased was in great agony at the time of making the statement. But a dying declaration cannot be made the basis for conviction when it suffers from infirmities and improbabilities. The time when the dying declaration is recorded should also be mentioned in the dying declaration. The time so given would enable the court to know about the gap between the recording of the declaration and the expiry of the deceased, which would throw considerable light on the physical and mental condition of the maker of the statement at the crucial time
4.3 PROXIMITY BETWEEN TIME OF STATEMENT AND DEATH
The test of proximity cannot be literally issued and practically reduced to a cut and dried formula of universal application. Distance of time would depend upon or vary with the circumstances of each case. There can be no hard and fast rule laid down. But as far as possible according to the various pronouncements of the hon’ble Supreme Court the Proximity between the time and statement is to be ma9natained.there should not be any unnecessary delay in recording the dying declarations.
Where death is a natural consequence of a continuous drama long in process and in a way finale to the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic wh9ole and not torn from the context where the death takes place within a short time of the marriage, or the distance of time is not spread over more than three or four months, the statement must be admissible.
The problem of proximity was first time raised before the Supreme Court in Sharad v. Maharashtra AIR 1984 SC 1622. A married woman had been writing to her parents and other relatives about her critical conditions at the hands of her in laws. She lost her life some four months later. Her letters were sought to be proved as dying declaration. The court held that the statements were not so remote in time as to loose their proximity with the cause of death.
Fazal Ali J. conducted a vast survey of authorities and stated the following propositions:
1. a declaration will be relevant whether death is homicide or suicide, provided it relates to the cause of death or exhibits circumstances leading to death.
2. the test of proximity cannot be literally issued and practically reduced to a formula of universal application.
The Supreme Court held that there were two possibilities namely it may be a case of suicide or murder. The expression cause of death applies to both. Where there are two possibilities open, the accused is entitled to the benefit of doubt and could not be convicted on the statement amounting to dying declaration. There must be a proximate relation to the occurrence, if statement is to be admitted as a dying declaration. General expressions indicating fear or suspicion not directly to the occasion of death are not admissible. Statements soon after the incident in which a person receives injuries is held admissible where medical evidence shows that the death is the result of injuries.
For a statement to be attracted under section 32(1) it is not necessary that death should have a nexus in terms of fixed time, with the statement, nor that the victim who made the statement should essentially be in apprehension of immediate death. The conditions are that the statements should relate to the circumstances surrounding the event, which ultimately led to the death. There should be nexus between the circumstances stated by the victim and the death.
In Paniben v. State of Gujrat [AIR 1992 SC 1817], yet another important case on this aspect, Justice Mohan summed up the principles governing dying declarations as decided by the decisions of the Supreme Court which are as follows:
1. There is nether a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
2. If the court is satisfied that the dying declaration is true and voluntary it can base on it, without corroboration
3. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not a result of tutoring prompting or imagination. And that the deceased was in a fit state of mind to make the declaration.
4. Where dying declaration is suspicious it should not be acted upon without corroborative evidence
5. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
6. A dying declaration which suffers from infirmities cannot form the basis of conviction.
7. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
8. Equally, merely because it is a brief statement, it is not be discarded on the contrary shortness of the statement in itself guarantees truth
9. Normally court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where the eyewitness has stated that deceased was in a fit state to make his dying declaration, the medical opinion cannot prevail.
10. Where the prosecution version differs from the version given in the dying declaration the said declaration cannot be acted upon.
4.4 DELAY IN RECORDING DYING DECLARATION
The Supreme Court on various occasions has emphasized the aspect that there shall no be unnecessary delay in recording of dying declaration .however, when the delay is reasonable and is the demand of the circumstance then the dying declarations are held to be admissible.
Where delay in recording the dying declaration is explained by the prosecution, he dying declarations in those cases are admissible. Where the dying declaration was recorded by the magistrate five hours later after the incident, it was held to be no inordinate delay and as there was no possibility of tutoring, the dying declaration was also vitiated [ Koli Chunilal Savji v. State of Gujrat AIR 1998 SC 2857].
4.5 COMPETENCY AND CREDIBILITY
The person, whose declaration is thus admitted, is considered as standing in the same situation as if he were sworn as a witness. It follows, therefore, that when the declarant, if living, would have been incompetent to testify by reason of imbecility of mind, or tender age, his dying declaration are inadmissible. And his credibility may be impeached or confirmed in the same manner as that of a witness. This rule is also established in America
In order to test reliability of a dying declaration the court has to keep in view the circumstances like opportunity of the dying man for observation. When dying declaration creates doubt, it needs corroboration to form the basis of conviction. Though a dying declaration recorded by the investigating officer in hospital is admissible the prosecution has to justify the court as to why better and more reliable method of recording a dying declaration could not be taken recourse to. Dying declaration shall, whenever possible, be recorded by the magistrate and the person making dying declaration shall, if possible, be examined by medical officer.
4.6 FITNESS OF THE DECLARATION
While making the dying declaration , the state of mind of the declarant is to be given prime importance. only if he is in a state to make a statement shall his statement be recorded and it is only when he has the mental faculties active that the dying declaration is to be held valid. If the the consciousness state and the good mental condition of the declarant is certified by the the doctor and the answers to the questions are given in a coherent manner, its veracity cannot be affected by the reason of certain infirmities in it.
Where one dying declaration was recorded by the doctors when the capacity of the deceased to remember was not impaired and the same was corroborated by the circumstantial and medical evidence and the other was recorded by the Magistrate when his memory was impaired and he could not tell the name of the doctor and particularly his endorsement that the patient is not only conscious but is in a fit condition to record dying declaration is a must without which the dying declaration may be rendered heavily suspect. But where the duty doctor recorded the dying declaration when the deceased was in a serious condition and there was no chance of tutoring, the fitness certificate by the hospital in charge was not necessary. [ State of Rajasthan v. Ganesh Das 1995 Cr. L.J 25]
If the dying declaration is recorded after obtaining the fitness certificate from the doctor and the endorsement is also obtained after recording the declaration, then in that case the dying declaration is admissible. But the supreme court has also delivered a different view in a number of cases, where it has stated that the certificate of the doctor as to the mental health is not sufficient and the magistrate must ascertain the declarant’s mental health, where the magistrate failed to do so and the declarant was not giving coherent and consistent statements in response to his questions which also were not recorded, in these circumstances the dying declaration is held to be unreliable.
Where 24 hours before recording the dying declaration, the declarant was certified to be unfit to make statement and evidence showed that her condition is worsening and the doctor, attesting that the dying declaration did not certify that she was in a fit condition to make statement, such a document could not be relied upon. [Fatima Kahn Mastansab Nadaf v. State of Kerala 1999 Cr. L.J. 1175]. Where the medical certificate only stated that the deceased was physically fit to make a statement and did not refer to the mental condition at the relevant time , a conviction cannot be solely based on such a dying declaration.
4.7 IPSISSIMA VERBA
A declaration should be taken down in the exact words, which the person who makes it uses, in order that it may be possible from those words to arrive precisely at what the person making the declaration means. When a statement is not the ipsissima verba of the person making it, but is composed of a mixture of questions and answers; there are several objections open to its reception in evidence, which, it is desirable, should not be open in cases in which the person has no opportunity of cross¬-examination. In the first place, the questions may be leading questions, and in the condition of a person making a dying declaration there is always very great danger of leading questions being answered without their force and effect being freely comprehended. In such circumstances the form of the declaration should be such that it would be possible to see what was the question, and what was the answer, so as to discover how much was suggested by the examining magistrate and how much was the production of the person making the statement
A declaration should be taken down in exact words which the person who makes it uses, in order that it may be possible from those words to arrive at precisely what the declarant meant. Where a statement is not ipsissima verba of the person making it, but it I composed of a mixture of questions and answers, there are several objections open to its reception in evidence, which it is desirable should not be open in cases in which the person has no opportunity of cross examination. In the first place the questions may be leading questions, and in the condition of a person making a dying declaration there is always very great danger of leading questions being answered without their force and effect being fully comprehended. [R v. Mitchell (1892) 17 Cox CC 503]
It is not necessary as a matter of rule that a dying declaration must be in the form of question and answer. A dying declaration recorded in the form of statement would be no less reliable or trustworthy only on that account. A dying declaration cannot be discarded merely because the witnesses have not deposed the exact words spoken by the deceased. There is no hard and fast rule that a dying declaration should be in the form of questions and answers though it is a better mode.
The rule of ipsissima verba is no doubt a salutary rule, but it cannot be held that unless the actual words of the declarant are repeated by each witness, it is not possible for a court to come to the conclusion that the declarant made a declaration or what the import or the meaning of the declaration was. The dying declaration should however be taken in the exact words of the person making it. In case of an oral declaration, unless one is certain about the words uttered by the deceased, it will not be safe to place reliance upon them and the dying declaration cannot be acted upon without sufficient corroboration. If the answers are given by gestures then their interpretation rests with the court.
It must be shown that the deceased himself dictated the statement and that he did not make the statement in answer to any questions and there must be guarantee that the dictation has been taken down correctly. Usually the best way to establish this is to show that the dictated statement was read over to the deceased and admitted by him to be correct. It is of paramount importance that the actual words of dying declaration were reproduced before the court as far as practically possible. When not recorded in the words of the maker, the court should subject it to proper scrutiny. Dying declaration which is not in deceased’s own words but mere note of the substance of what he stated is unsafe for conviction.
Persons recording the dying declarations should bear in mind that the object to get from the person, the cause of death or circumstances which resulted in death, long statements of incidents before the actual assault should not be included
CHAPTER- 05
PLURALITY OF DYING DECLARATIONS
If there are more than one dying declarations, they should be read as one and differences in them on material aspects with reasonable explanation may be taken at par with omissions covered by the explanations to s. 161 Cr. P.C. and may be considered as a matter of fact I each case of its own strength. It is not the number of dying declarations which will weigh with the court. Plurality of the apparantely consistent dying declarations themselves are not sufficient to pursuade the court to act thereon.
Where several dying declarations are made the test is whether the version of the deceased is proved to be false in respect of the integral part of the case. A dying declaration should satisfy all the necessary tests and one such important test is that if there are 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. Section 32 of the Evidence Act makes the statement of fact by a person who is dead or cannot be found relevant, but that provision does not justify an assumption that among the two statements of a dead person the earlier one shall be invariably accepted and the second one necessarily rejected.
Where there are more than one statements in the nature of dying declaration made by the accused, one first in point of time must be preferred. Where there are two dying declarations in a case contradictory to each other, recorded in the circumstances raising doubt about their genuineness and truthfulness, no conviction can be recorded on the basis of such dying declarations. 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 it is hazardous to base conviction on such dying declarations.
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 can be reconciled. Where two dying declarations have been made by the victim, both can be believed, if both have been made in fit condition and are corroborated.
Where there are three dying declarations of a woman, corroborated by other circumstances, the supreme Court held that the dying declarations are groaning utterances of the dying woman in the grip of dreadful agony and cannot be judged by the standards of fullness of the particulars which witnesses may give in other situations and if they are basically credible, even if there are some short falls or there are some unrealistic and unnatural facts, the declarations cannot be discredited. When they are corroborated by other circumstances, the declarations are sufficient to bring home the offence [ Somnath v. State of Haryana AIR 1980 SC 1226].
Where there was consistent story in all the three dying declarations one made to the witness, the second one in the F.I.R. and the their one to a tahsildar stating that it was the accused who poured kerosene and set fire to the deceased it was held that minor contradictions would not affect the acceptability of dying declarations.[ Godhu v. State of Rajasthan AIR 1974 SC 2188]. When the divergent statements made by the dying person are capable of being reconciled fully and totally, the court shall not reject the multiple dying declarations merely because prima facie they read differently. Where there is no infirmity in any of the dying declarations then all the dying declarations have to be reconciled and taken into account for admission by the Courts. Inconsistent dying declarations cannot be accepted in the absence of any corroboration, and the convictions cannot be based on any such dying declaration.
A dying declaration properly made before a magistrate who has satisfied himself that the declaration was made in a fit state of mind is sufficient to sustain a conviction without corroboration. When there is more than one dying declarations, the first dying declaration in point of time is to be preferred. When there are more than one dying declarations, the latter dying declaration may not be free and a voluntary statement but may be a tutored or an inspired one. The crucial test is that in all cases of plurality of dying declaration is whether the deceased’s version is proved to be false in respect of the integral portion of the case. The test whether he ahs given a true version is not to be judged with reference to any dying declaration, but in the light of several dying declarations made by him. It is only in extreme cases that the court can safely convict, relying upon the first dying declaration provided there is convincing and adequate corroborative evidence.
As to the value of the two dying declarations made by the deceased in this case, the court was of the opinion that they were consistent with each other and had a ring of truth about them. One of the arguments advanced against the assumptionw as that in the first dying declaration the deceased had stated that he recognised the accused in the light of two torches which were flashed by ‘M’ and ‘G’, whereas in the second dying declaration made to the magistrate the deceased ascribed the torch only with ‘M’.
It must be remembered that the only question relevant was whether there was sufficient light for the deceased to recognize his assailants. This fact was brought out in the statement of the deceased when he stated that there was a torch-,light which was flashed at the time of the occurrence. Whether the light available was of one torch or two torches was of no consequence. Moreover at the time of the second statement, the deceased must have been in a considerable pain if he did not give out all the minor details with respect to torches in the hands of the witnesses the would affect the merits of the two dying declarations.[ State v. Motilal 1968 Cri. L.J. 227]
CHAPTER -06
EVIDENTRY VALUE OF DYING DECLARATION
The principle on which dying declarations are admitted in evidence is based upon the legal maxim nemo moriturus praesumitur mentire ie a man will not meet his maker with a lie in his mouth. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence.
The human mind is constituted to be inclined to attach a very high degree of importance to a dying declaration. But there is no rule of law that a dying declaration cannot be acted upon unless it is corroborated where in a bridge burning case a dying declaration was made but the persons named in the dying declaration were not examined by the prosecution. A dying declaration stands independently as a good piece of evidence for sustaining a conviction, if it is found to be true and free from infirmity, and corroboration need not be sought for. Necessity for corroboration arises only where the dying declaration presents suspicious features and infirmity. Where dying declaration is suspicious, it should not be relied Jupon without strong and convicting corroborative evidence.
It is absolutely necessary for the protection of society that dying declarations should be received, for otherwise a premium would be held out for the commission of crime. It is the nature of crimes of violence that they should be committed with the greatest possible secrecy; and thus, it must sometimes occur that the only testimony, often only direct testimony against an accused is to be found in the dying declaration of his victim. That is why the law made it a relevant fact, and usually a dying declaration, which records the very words of the dying man unassisted by interested persons, is most valuable evidence.
In the dying declaration the deponent is not not administered oath, nor opportunity is given to the accused to cross-examine the deponent. In the light of these shortcomings, the courts have to apply the strictest scrutiny to the statement before it is acted upon despite the great solemnity and sanctity attached to it as a person who anticipated immediate death is not supposed to lie. The court has to keep in mind the state of mind of the deceased, whether he is capable of making such statement when he anticipated immediate death. It is in fact for the court to satisfy itself whether the statement made in the circumstances is true or concocted. Once, the court is satisfied that the statement is voluntary then in that case alone the conviction can be passed on mere dying declaration without further corroboration.
Keeping in view the circumstances in which the dying declaration was made. It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. It stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. The rule requiring corroboration is a rule of prudence, and it has been held in a number of cases that there is no rule of law which requires that a dying declaration should not be acted upon unless it is corroborated. A dying declaration if acceptable provides a safe ground for conviction of the accused and a court need not look for any corroboration thereof. [State v. Kanchan AIR 1954 All 53]
Dying declarations to be relied upon should be of such a nature as to inspire full confidence of the court in their correctness. There should not be any discrepancy in them which should throw doubt upon the veracity of their contents. Such statements should also be corroborated from other circumstances and the evidence on record. It has to be established beyond reasonable doubt that the maker of the statement had the opportunity to identify the assailants. If on close scrutiny of the dying declaration, there emerges any element of doubt about the opportunity of the maker to identify the assailants, it will not be safe at all to place implicit reliance on the dying declaration for the conviction of the accused.
The dying declaration must have been made at the earliest opportunity and it must not be the result of tutoring by interested parties. Where the court is entirely satisfied with regard to the truth and genuineness of an uncorroborated dying declaration, there is nothing to prevent it from regarding such a dying declaration as sufficient to sustain a conviction. There is no absolute rule that a dying declaration should not be acted upon for the purpose of convicting an accused person even if uncorroborated, provided that the court is fully satisfied that it is true. But, before so acting on it, the court will apply to it every test of its genuineness, and good faith, which is possible in the - circumstances of the case to apply.
6.1 RELEVANCY AND ADMISSIBLITY
A dying declaration made by a person as to his cause of death or any of the circumstances of the transactions which resulted in his death, in cases win which the cause of death comes into question, is relevant under s3ction 32 and is also admissible in evidence. though dying declaration is indirect evidence being a piece of hear say, yet it is an exception to the to the rule again admissibility of hearsay evidence. indeed, it is substantive evidence and like any other evidence requires no corroboration for forming the basis of conviction of the accused. But then the question as to how much weight can be assigned to the dying declaration is a question of fact and has to be determined on the facts of each case.
Where the dying declaration recoded by the police official, the original of which was not found on the record and the official who recorded it was not examined, it was held to be inadmissible.[Ram Bihari Yadav v. Satte of Bihar AIR 1998 SC 1850]
When the dying declaration is recorded by the sub- divisional magistrate in the very words of the deceased, no interested person was present there and the magistrate and the doctor deposed that the deceased was fully conscious and in a fit state to speak which was certified by the doctor and the deceased affix ed the thumb impression thereon, it being short, recorded straight forward and not in a question answer form it is held to be admissible.[ Sant Gopal v. State of U.P. 1995 Cr. L.J. 312]
6.2 WEIGHT ATTACHED TO DYING DECLARATIONS
“ A man will not meet his maker with a lie in his mouth” is the maxim that is applied in case of dying declarations. A dying declarations made by the victim in a fit mental condition and on the verge of death has a special sanctity, at the solemn moment, a person is most unlikely to make an untrue statement, the shadow of impending death in itself is the guarantee of the truth of his declaration as to the cause and the circumstances leading to his death, a dying declaration hence is held to be almost sacrosanct.
In order to test the reliability of the dying declaration the court has to keep in view like the circumstances which the person on the point of death had for observation, whether his capacity to remember the facts stated by him, had not been impaired by him at the time he was making the statement, that the statement was made at the earliest opportunity and is in no way a result of tutoring by any interested parties. The dying declaration stands on the dame footing as any other piece of eveidence and has to be judged in the light of the surrounding circumstances with reference to the principles governing the weight to be attached.
Where a dying declaration is amply corroborated, not only by the eyewitnesses but also by circumstantial evidence and by medical evidence regarding the situs of the injuries, the dying declaration is to be admissible. A dying declaration cannot be contradicted by extraneous evidence of witnesses and it has ro stand by itself or not at all.[ State v. Motilal AIR 1968 All 83]
Where there was no inconsistency in the evidence, regarding the oral dying declaration, conviction based on the dying declaration is unassailable and the same will be the consequence of voluntary and consistent statements reduced in writing, corroborated by independent witnesses and the presence of motive as a crime.
A dying declaration cannot be ignored when crucial facts are found in it merely on the ground that the declaration does not include as to how the accused received injuries. The crux of the whole matter is as to who stabbed him and the reason for him doing so and if the answer is found in the dying declaration then the declaration has to be admitted.[ State of Maharashtra v. Krishnamurthy AIR 1981 SC 617]
The very brevity of the dying declaration in the circumstances of the case, far from being a suspicious circumstance , is as index of its being true and more so when the substratum of the dying declaration is fully consistent with the ocular account given by the witnesses. It may be in certain situations that the very wealth of details in a statement attributed to a dying man arouses suspicion, on the other hand, the circumstance that a statement contains a wealth of details cannot necessarily lead to an inference that the statement is a fabricated one.
Where the deceased made a statement whichw as recorded and signed by the deceased and the villagers. It showed that he recognised the two accused and his wife and son also recognised the two accused. Though the written declaration was not mentioned in the F.I.R., which stated that he made some oral dying declaration, it was held that it could not be stated that the written dying declaration was brought into existence subsequently and the delay by the police in recording the statement of the scribe of the dying declaration did not render the prosecution unreliable.[ Nahahauram v. State of M.P. AIR 1988 SC 912].
A boy of 12 years who was injured was fast loosing his consciousness. Two dying declarations were produced which showed the presence of persons who bore enmity to the accused .the evidence was rejected.[ Rashid Beg v. M.P. AIR 1972 SC 332]
Where the deceased wife who had committed suicide due to harassment, torture and assault and demand for more dowry by her husband and in-laws, absolved her husband and her relatives by stating in her dying declaration that she received the burn injuries while she was cooking food on a kerosene stove, but her letters to her relatives disclosed incessant cruelty and physical violence to her which drove her to commit suicide, it was held that her dying declaration could not be said to be destructive of this evidence, but the declaration was an act of terrified, helpless and submissive Hindu wife.[ State of Maharashtra v. Vasant Shankar Mhasane 1993 Cr. L.J 1134]
If the court has slightest of the doubts that the declarant was not in a fit state of mental condition then the dying declaration in no circumstances can be relied upon and hence cannot in any manner form the basis of conviction.
6.3 CORROBORATION OF DYING DECLARATION
It is well settled that there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying decla¬ration cannot be acted upon unless it is corroborated. Dying declaration can be accepted even if it is not corroborated by other evidence the basic principle is that the court must not look for corroboration unless it suffers from any infirmity Once the court comes to the conclusion that the declaration is a truthful ver¬sion, there is no question of further corroboration [Kushal Rao v. State AIR 1958 SC 22].
It should be remembered that it is admitted on the Necessity principle, for in a case of secret murder no direct evidence other than the statement of the victim can be expected. But the evidentiary value of a dying declaration varies very much in accordance with the cricumstances in which it was made and generally speaking a declaration not made in immediate expectation of death and not made in the presence of the accused should not be acted upon with¬out reliable corroboration When the articles found at the scene of crime do not support the facts stated in the dying declaration, the declaration cannot be relied on without independent corroboration
Section 32 does not require a statement to be made in expectation of death . When a person who had made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under section 32 It has also been held in other cases that a dying declaration may require corroboration according to the cir-cumstances of the case and the nature of the evidence of it .
Though some special considerations arise in the assessment of dying declarations, such evidence must be considered as the evidence of any witness. First the court has to make sure what the statement of a dead man actually was. Next, the court has to be certain about the identity of the person named in the dying declaration .In the case of oral dying declarations, the wit¬nesses should be able to give the exact words used by the deceased.
A conviction based upon uncorroborated dying declaration is legal. There is neither rnay rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence. where the dying declaration is true and reliable, corroboration is not necessary. Corroboration will not be necessary if the dyiong declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. Corroboration for dying declaration becomes necessary only when it suffers from infirmities.
The Supreme Court has held that:
1. it could not be laid down as an absolute rule of law or even as rule of prudence which has ripened into the rule of law, that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
2. each case must be determined o nits own facts keeping in view the circumstances in which the dying declaration as made.
3. it cannot be laid down that dying declaration is a weaker kind of evidence than other pieces of evidence.
4. a sying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrpunding ccircumstances and with reference to the principles govewrning the weighing of evidence
5. a dying declaration recorded by the a component Magisdtrate in aproper manner in the form of questions and answers and in words of the maker as far as practicable-stands on a much higher footing than a dying declaration which depends on an oral testimony which may suffer from all infirmities of human memory and character.
6. in order to test the reliability of dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation.
It is almost improbable, if not impossible for the witnesses to remember the exact words of the deceased after lapse of almost a year and the dying declaration cannot be discarded on that ground.
The dying declaration was made to the brother of the deceased. That brother did not mention about the declara¬tion in his statement to the police. But at the request he had said that his brother told him that he was stabbed by the accused. So the non-mention of the declaration in his statement to the police can only be taken as an omission [Asan Tharagil v. State of Kerala, 1981 Cri LJ 1165].
The evidence with regard to the dying declaration as testified by three witnesses did not suffer from any infirmity and it is found to be wholly truthful and without any element- of embellish¬ment or distortion, their evidence can be relied upon.
When the evidence of the witnesses is not consistent about the dying declaration their evidence cannot be accepted. Sometime the witnesses have a tendency of exaggerating a fact. So it would be improper and illegal to reject the dying declara¬tion on the basis of the dying declaration not being in complete harmony and conso¬nance with the oral statements.
The omission by the deceased to state that the other deceased was beaten on the head after being stabbed cannot be a ground to hold that the evi¬dence of prosecution witness which is otherwise consistent with the version of the deceased in regard to the entire attack against both the deceased is false or doubtful [Puligujju Dasaratharamaiah v. State of Andhra, 1991 Cri LJ (NOC) 25 (AP)].
A dying declaration is never tainted piece of evidence as that of an accomplice and it cannot be urged that one dying declaration cannot go to cor¬roborate another.
A great sanctity and solemnity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on a guard against the statement of the deceased being a result of either tutoring, prompting, or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement without any influence or rancour.
Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to found the conviction even without any further corroboration. In order to test the reliability of dying declaration the court has to keep in view the circumstances like the opportunity of the dying man for observation. The statement has been consisistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties.
Although a dying declaration should be carefully scrutinised, if the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement, and it is coherent and consistent, there is no legal impediment to founding the conviction on such a dying declaration even if there is no corroboration.
It is pointed out by the Supreme Court that a practical approach to the question of corroboration of dying declaration is that, the court should first and foremost find out whether the dying declaration id true or not? If true, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are nor clear nor convincing that the court may for its assurance look for corroboration. Moreover, with respect to dying declarations there are two questions
(i) Whether the deceased rally made the statement or was it fabrication;
(ii) Whether the persons named in the dying declaration as culprits were really responsible for the death of the deceased.
The court has to deal with these two aspects in order to reach to a conclusion as to whether further corroboration to substantiate the dying declaration is needed or not.
6.4 DYING DECLARATION AS SOLE BASIS OF CONVICTION
Dying declaration if found to be true and voluntary, can form the sloe basis of conviction and needs no corroboration. Such a statement is admissible not only against the person actually causing death but also against other persons participating in causing the declarant’s death. The declarations having not been recorded in question- answer form is no ground to discredit it.
6.5 APPRECIATION OF DYING DECLARATION
The evidence with regard to dying declaration must be very carefully and critically scrutinised, as the accused has no opportunity to challenge such statement by way of cross-examination. If the dying declaration is truthful and corroborated conviction can be based on the same. 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 staten1ent. A dying declaration recorded in suspicious circumstances cannot be made basis for conviction unless it is corroborated. When it suffers from some infirmities, it requires corroboration.
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. In the first place, the court has to make sure as to what the statement of the dead man actually was, and secondly, the court has to be certain about the identity of the persons named in the dying declarations. A dying declaration which has been recorded by a competent magistrate in the proper manner stands on much higher footing than a dying declaration which depends upon oral testimony which may suffer from all infirmities of human character, and that in order to test the reliability of a dying declaration the court has to keep in view the circumstances like the opportunity to the dying man for observation for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control and that the statement was not the result of tutoring by the interested party
The person, against whom the dying declaration is sought, to be proved, has no opportunity to cross-examine the person making such. a declaration. The policy of law is that the words of a dying man are 'entitled to great respect if the attending circumstances invest such words with the stamp of truth. The court must, therefore, 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. If on close scrutiny of the dying declaration, there emerges any element of doubt about the opportunity of the maker to identify the assailants, it will not at all be safe to place implicit reliance on the dying declaration for the conviction of the accused. It has also to be ascertained that the dying declaration is made at the earliest opportunity and it was not the result of tutoring by the interested parties
The truthfulness reliability and the acceptability of the dying declaration has to be adjudged in the light of attended 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. With regard to reliability the court has to keep in view the circumstances like the opportunity to the victim to observe his assailants, his capacity to remember the facts stated, his state of mind at the time of making the declaration, consistency of the declaration, if made more than once and where the declaration is made at the earliest. It also has to be found whether it has been stemmed from tutoring or interference by any other person.
While assessing the weight of dying declaration, the court must ponder and considert all the relevant situations and ponderable causes which are the germane and to do the maker’s physical and mental condition, the facts in circumstances in which the declaration was made are important. It may be seldom that dying declaration is mad willfully false, but there are many circumstances in the situation of the wounded man which may introduce element of fallaciousness into his statement. The weight to be attached hence must vary from case to case and from circumstance to circumstance.
By and large, inter alia, the following three tests can be devised in order to answer the question whether dying declaration is true:
(i) Was the victim in a position to identify the assailant?
(ii) Whether the version narrated by the victim is intrinsically sound and accords with probabilities?
(iii) Whether any material part, emphasis being laid on material part, is proved to be false by other reliable evidence?[ State of Gujrat v. Rabari Pancha Punja 1981 Cr LJ (NOC) 170 (Guj) (DB)]
(iv)
To base conviction on the dying declaration the court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify the assailants and that he was making statement without any influence or rancour.
Witnesses should not be allowed to prove a dying declaration as if it is a substantive piece of evidence. The relevant fact to be proved is the statement made by the deceased and that statement is not the document made by the magistrate, but the ver-bal statement made by the deceased person. The only way of proving a declaration is by the oral evidence of some witness, who heard it made and who can refresh his mem-ory by referring to the note made by him and read over by him at or about the time the statement is made.
A declaration made by a person in expectation of death in the absence of the accused and recorded in a language different from one in which it is made, by an officer who is not examined in the case cannot properly be used as evi¬dence against the accused. The usual method is to examine the person who recorded the statement, or to examine some per¬son or persons who were present at the time and heard the statement being made.
6.6 DYING DECLARATION AND MEDICAL EVIDENCE
Merely because a dying declaration is not accompanied by a medical opinion that the deceased when made the statement was in a fit state of mind, it doesnot affect the reliability. The fact that the dying declaration is produced only during the trial is immaterial, if it is corroborated by the evidence of the prosecution witnesses and the evidence of the doctor.
Where the medical evidence showed that the deceased received such injuries that he could not survive for more than 10-30 minutes, but the dying declaration was proved by the direct evidence of the eye¬witnesses, the Supreme Court held that the medical evidence could not wipe out the dying declaration. The dying declaration was believed and the accused were convicted for charge of murder under s 302, IPC.[ Nanahau Ram v. State of Madhya Pradesh AIR 1988 SC 912]
Where the oral dying declaration was also not consistent with the medical evidence adduced in the case, apart from the fact that there was considerable discrepancy in the testimony of the witnesses with regard to the alleged oral dying declaration, the oral dying declaration was not accepted by the court.
The court may look for certificate of the medical officer that the deponent was in a fit state of mind to make the statement if some doubt creeps into the mind of the court whether the deponent was mentally alert to make statement or not in every case. The dying man may at times, in a conscious moment, make some statement to persons present around him which mayor even may not be recorded by any individual and quite likely may die soon thereafter giving no chance to the doctor to attend on him.
It cannot be said in absence of the certificate, that the whole statement should be rejected for want of it, even if, otherwise found to be an honest statement, so in judging the same the totality of the entire circumstance should be looked into and it is just as a rule of caution only to find out that if the deponent was mentally alert and in a fit state of mind to make statement.
There is no prescribed form to record a dying declaration and there is no rigid rule for the same. It can only be said that the man who records the dying declaration must satisfy himself that the deponent is in a fit state of mind and quite alert in making statement relating to the injuries sustained by him. A few omissions in the statement here and there, if the statement is otherwise found to be honest and acceptable, cannot be said to be a reasonable ground to reject it, and more so, if other facts reflect the same to be as a correct statement.
The certificate, appended by the doctor, that the deceased was in a fit state of mind, though has a great material bearing, is not, by itself, conclusive. The court can go into the evidence and find out whether the deceased was in a fit state of mind at the time of recording his statement. It has to be assessed from the questions put and the way in 'which the deceased gave answers, the seriousness of the injuries sustained and the situs at which the injuries were inflicted and the surrounding circumstances.
The law regarding dying declaration can be summed as follows:
(i) a dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore, not tested by cross-examination is still admissible in evidence as an exception to the general rule against the admissibility of hearsay as it is founded on the principle of necessity. The weak points of a dying declaration serve to put an obligation the court to closely scrutinise all the relevant circumstances;
(ii) a dying declaration, if found reliable, can form the basis of conviction;
(iii) a court is not excluded from acting upon an uncorroborated dying declaration for conviction;
(iv) a dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence;
(v) it has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence;
(vi) it is as if the maker of the dying declaration was present in the court making a statement stating the facts contained in the declaration with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination;
(vii) 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 for conviction; and
(viii) a dying declaration made to a police officer is admissible in evidence. However, the practice of dying declaration being recorded by an investigating officers has been discouraged. The only exception is when the deceased was in such a precarious condition that there was no other alternative left.
CHAPTER-07
RECORD AND THE PROOF OF DECLARATION
Dying declarations may be oral or written although in most cases such state¬ments are made orally before death ensues and is reduced to writing by some one, eg, a magistrate, a doctor, a police officer &c. If it is recorded, no oath is necessary, the accused need not be present, nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available, for record¬ing the statement of a man about to die. When a person whose evidence is required is in imminent danger of death, his statements should be recorded by a magistrate exercising judicial functions. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such a statement, must necessarily depend on the facts and cir¬cumstances of each particular case.
The right to offer the declaration in evidence is not restricted to the prosecutor, but it is equally admissible in favour of the accused. When a Judge is sitting with a jury, the admissibility of this evidence in any particular case is a question to be decided by the judge alone. Before the 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. The recording of a dying declaration which may subsequently be produced as evidence in a court of justice is a grave and solemn proceeding. Unauthorised persons should not be permitted to crowd round when the declaration is being made. It is the bounden duty of the magistrate to take every possible step to ensure that no influence is brought to bear on the declarant and that he is not prompted or aided in any way in making his statement. The proceeding should be so conducted that the declarant is as free from personal influence in emitting his declaration, as he would be if he were giving evidence in a court of law It is the burden of the prosecution to prove the physical and mental condition of the dying man that he was fit to make the declaration. The person who records a dying declaration must be satisfied that the dying man is making a conscious and voluntary statement with normal understanding.
It is highly undesirable that the writing of such an important statement should be entrusted to a clerk when the magistrate before whom it is made is not incapable of doing it himself. But where the magistrate deposes about its authenticity, it should not be rejected from evidence. A dying declaration recorded by a clerk in the presence and supervision of the magistrate does not become inadmissible merely because the scribe is not produced to prove it. If this cannot be arranged for, and it becomes necessary for some other person to record the dying declaration, it should, if possible, be made in the presence of the accused or of attesting witnesses. A dying declaration made to a police officer, should under the provisions of this section be signed by the person making it
The law does not require that the record of a dying declaration must be singed by the deponent and, therefore, the absence of it cannot make it inadmissible. Where the circumstances of case permit, the statement should be taken in the presence of the accused, and should be written as a formal deposition in accordance with the provisions of the Criminal Procedure Code. If this be done, and the injured person dies or becomes incapable of giving evidence at the sessions, the depositions so taken will, subject to the provisions of the following section, be admissible in evidence without further proof. If the statement be not taken down in the presence of the accused, and as a formal deposition, it will nonetheless be relevant under this section, but, before it can be admitted in evidence, it must be proved to have been made by the deceased; it is not rendered admissible without such proof because it was taken down by a magistrate.
The writing, made by such magistrate, cannot be admitted to prove the statement of the deceased without making it evidence in the ordinary way by calling the magistrate who took down the declaration, and heard it made. If the magistrate be failed to prove the dying declaration, he may either repeat the words used by the deceased, refreshing the memory with the writing make by himself at 'the time when the statement was made or he may speak from the writing itself, as being an accurate reproduction of what the deceased had said in his presence.
A dying declaration recorded in the absence of the accused and by a magistrate other than the inquiring magistrate is not admissible until it is proved by the recording officer. 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. A dying declaration made to a police officer in the course of an investigation, may, if reduced to writing be signed by the person making it and may be used as evidence against the accused, if such writing be properly proved by the police officer in whose presence it was signed and the declaration, which it embodies, was made.
The factum of recording a dying declaration is not relevant. It is the contents of the dying declaration that matter. The dying declaration must be put to the accused in the examination under s.313 Cr.P.C., the accused must be asked whether what the deceased has stated is true or not. Where the dying declaration is not put to the accused, it must be eschewed from consideration.
7.1 DYING DECLARATION RECORDED BY A POLICE OFFICER
As the investigating officers are naturally interested in the success of the investigation, the practice of the investigation officer himself recording the dying declaration during the course of the investigation should not be encouraged. However, as pointed out by' the Supreme Court in the case of Dilip Singh v State of Punjab, [AIR 1979 SC 1173] although the practice of investigation officer himself recording dying declaration ought not to be encouraged, the dying declaration recorded by the police officer during the course of investigation is admissible in evidence under s 32 of the Evidence Act.
Similar view has been taken by the Supreme Court in the case of Ramawati Devi v State of Bihar [AIR 1983 SC164] their Lordships observed:
A statement, written or oral, made by a person who is dead as to the cause of his death or as to any or the circumstances of the transaction which resulled in his death, in cases in which the cause of that person's death comes into question, becomes admissible under s 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.
In this case also a dying declaration recorded by the assistant sub-¬inspector of police was held. In the practice of the investigating officer himself recording a dying declaration is not to be encouraged. It is true that the dying declaration which is not recorded by the magistrate has to be scrutinised closely, but if the court is satisfied on a close scrutiny of the dying declaration that it is truthful, it is open to the court to convict the accused on its basis without any corroboration. The dying declaration made by the deceased, before the sub-inspector of police was found reliable and the accused was convicted. [Jaswant singh v. Delhi Administration AIR 1979 SC 190]
Where dying declaration is recorded by a police officer, omission of the signature of the police officer does not impinge upon the truthfulness of the dying declaration. [Mange Ram v. State 1990 Cr. L J 183 (Del)]
1. A dying declaration recorded by a police officer during the course of investigation is admissible in evidence.
2. It is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor.
3. It is not prudent to base the conviction on a dying declaration made to an investigating officer.
4. The practice of the investigating officer himself recording a dying declaration during the course of the investigation should not be encouraged.
5.
There is no presumption against the veracity of the investigating officers, but is not prudent to base the conviction on a dying declaration made to an investigating officer.
7.2 DYING DECLARATION RECORDED BY DOCTOR
The doctor is the best person to opine about the fitness of the deceased to make the statement. Where the doctor finds that the life is ebbing fast in the patient, and there is no time to call the police or the magistrate, in such a situation the doctor is justified, indeed he is duty bound to record the dying declaration of the deceased. He is a disinterested and respectable witness also. The court should not refuse to act on the dying declaration recorded by the doctor.
When the dying declaration is recorded by the doctor in question¬ answer form and is corroborated by other evidences, it is sufficient to convict the accused. A dying declaration recorded by the doctor may be relied on, where the doctor has certified that the deponent was capable of deposing and she was in her senses. A dying declaration recorded by a doctor signed by three other doctors present at the time when the dying declaration was recorded though not in question and answer form was held credible.
In Suresh v. Madhya Pradesh AIR 1987 SC 860, the accused was tried for the murder of his wife by pouring kerosene over her and set her afire. The dying declaration was recorded by the doctor in the hospital The doctor also deposed in the witness-box that when she recorded the dying declaration, the deceased was capable of deposing and was in her sense. The Supreme Court held that the session judge and the High Court were justified in placing reliance upon the dying declaration. The accused was convicted for murder under s 302, IPC
7.3 RECORDING OF THE DYING DECLARATION BY MAGISTRATE
The person who records a dying declaration must be satisfied that the dying man is conscious and is making voluntary statement with normal understanding. In case of the dying declaration, the recording of the magistrate in the exact words stated by the deceased is of great importance. Any suggestion that the deceased has said something by mistake cannot be entertained.
It is always desired that the dying declaration is recorded in the words of the injured, but simply because the very words uttered by the injured are not reproduced, it is no reason to reject it, if the court is otherwise satisfied that what was recorded, correctly reproduces what was stated by the injured.
Where the Magistrate recorded the dying declaration after being satisfied as to the identity of the maker as well as her fitness to make the statement, and signature of the trainee nurse was got on the statement due to nobn-availaiblilty of the doctor, the concurrent finding as to its admissibility was upheld. [Ram Bihari v. State of Bihar AIR 1998 SC 1850].
The dying declaration recorded by the magistrate in his own handwriting though not in a question answer form is admissible. The dying declaration recorded by an executive Magistrate not enjoying the powers of either the Metropolitan Magistrate or Judicial Magistrate, is however admissible.
CASE LAWS
P.V. Radhakrishna V. State of Karnataka MANU/SC/0496/2003
This is a very important case where the Supreme Court illustrated and enumerated the principle governing dying declaration laying more emhasis on corroboration and dying declaration.
On 7.2.1993 Smt. Dharni was in the house with the accused-appellant when they quarrelled over certain, domestic differences, and the accused poured kerosene and set her on fire. On hearing her screams and seeing smoke coming out of the room, their landlord V.N. Guptha (PW1) rushed to the spot. He did not find the accused there: but was told by the deceased that the accused had poured Kerosene and set her on fire and run away. On receiving of information about the incident Srinivasa Murthy, ASI, (PW6) arrived at the spot along with Sivanna (PW4) Police constable. The deceased was taken to the Victoria Hospital for treatment. At the hospital PW6 recorded statement of the deceased in the presence of Dr. M. Narayana Reddy (PW7). This was treated as FIR. After registering the case, investigation was started. In the hospital the deceased breathed her last while undergoing treatment on 8.2.1993 at about 10.25 p.m.
Reliance was placed on the dying declaration, which was recorded by PW6 in the presence of PW7 and was marked as Exhibit P-7. In appeal before the High Court, the accused-appellant contended that the so-called dying declaration was not credible and acceptable. But the High Court did not find any substance in the plea, and dismissed the appeal by the impugned judgment.
The hon’ble Supreme Court held that, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clause' of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eye-witness the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an 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. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth."
This is a case where the basis the basis of conviction of the accused is the dying declaration. The situation in which a person is a on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (AIR 1992 SC 1817):
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadva and ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC 1994]
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P. (AIR 1982 SC 1021)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654).
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laximpati Naidu (AIR 1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar (AIR 1979 SC 1505)
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SCC 912)]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan and Ors. (AIR 1989 SC 1519)]
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839)]
In the light of the above principles, the acceptability of alleged dying declaration in the instant case was considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unallowed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.
Visharam v. State of Madhya Pradesh AIR 1993 SC 250
A cattle belonging to the appellants trespassed into the field of the deceased and damaged the crops, which gave rise to a quarrel ultimately leading to the present occurrence. PW 1 who is the father of the deceased and PW 5 who is no other than the wife of Kamal Kishore, one of the deceased persons, would be the last person, in such a situation, to implicate the appellants falsely leaving out the real culprits. Both the courts discussed the evidence of PWs 1 and 5. W it was also observed that PW 1 in the FIR itself has mentioned about the earlier dying declaration and has also given the necessary details. Nothing significant has been elicited in his cross-examination. Likewise, PW 5 deposes that she also reached the place of occurrence and found Chandra Shekhar lying unconscious and that her husband Kamal Kishore was conscious and on being asked, he told her that the six appellants attacked him and beat him. Thereafter, Kamal Kishore was taken to the hospital.
In the cross-examination she has affirmed the same and her evidence does not suffer from any infirmities. The doctor who examined Kamal Kishore, on being cross-examined, no doubt stated that ordinarily injuries found on the head of Kamal Kishore could cause unconsciousness but it could not positively be said that they would have caused immediate unconsciousness. Relying on this admission, the learned counsel submitted that it is not safe to rely on the oral dying declarations. It must be noted that the doctor did not categorically state that Kamal Kishore would have been unconscious immediately after receipt of the injuries and could not have been in a position even to speak that much. We have carefully examined the evidence of FWs 1 and 5 and also for reasons given by both the courts below and they are satisfied that no interference is called for. The appeal is accordingly dismissed.
Goverdhan Raoji Ghyore v State of Maharashtra 1993 Cr. L.J. 3414 SC
The learned sessions judge did not accept the dying declaration recorded by the police. The learned sessions judge referred to the statement of the prosecution witness Madhukar and noted that the said witness stated that the deceased stated in her dying declaration that her husband put kerosene on her body, but the police did not record it and also did not allow the panchas to read the dying declaration. The learned sessions judge was of the view that the evidence of the said witness had suggested that the police must not have recorded the dying declaration exactly according to the statement of Sunanda.
After giving our anxious consideration to the respective submission made by the learned counsel for the parties, it appears to us that the dying declarations should not have been discarded by the learned sessions judge. The learned sessions judge should have noted that both the dying declarations were similar in material particulars. The minor discrepancies in the two dying declarations were not sufficient to invalidate either of the two dying declarations. Even if the first dying declaration recorded by the police officer is not taken into consideration, we do not find any reason to discard the second dying declaration recorded by the Taluk magistrate.
Such dying declaration was recorded by Taluk magistrate after obtaining a certificate from the doctor that the deceased was in a fit state of mind to make the statement. Even after recording such dying declaration, the learned magistrate obtained a further recording certificate from the doctor that the deceased was in a fit state of mind to make the statement. The distinction sought to be made out by the learned sessions judge that a fit state of mind and a conscious state of mind were not the same thing, is too hypertechnical in the facts and circumstances of the case. The learned magistrate put the questions to the deceased as to whether she was in a fit state of mind to make the statement, the dying declaration was required to be discarded.
Sohal Lal @ Sohan Singh and Ors. v. State of Punjab MANU/SC/0808/2003
This is again an important case dealing with the principle reading more than one dying declaration. This is a case of Dowry death where an F.I.R. was lodged with regard, to the unnatural death, in suspicious circumstances, of one Kamlesh Rani. The gist of the F.I.R. was that Kamlesh Rani was being harassed by her husband-Sohan Lal @ Sohan Singh (first appellant), mother-in-law Harbans Kaur (second appellant) and sister-in-law Kanchan (third appellant), who ill treated her to extract dowry from her parents. And that Kamlesh Rani had been admitted in Hospital with extensive burn injuries as she had been set on fire by her husband, Sohan Lal, mother-in-law. Harbans Kaur, father-in-law, Sarwan Singh, and sister-in-law, Kanchan after pouring kerosene oil on her, after conniving with one another. .
The case of the prosecution rests mostly on two declarations made by Kamlesh Rani, one on 2.4.1996 to the Naib Tehsildar-cum-Executive Magistrate, Lakhbir Singh (PW 6) at 3.15 p.m. and the second statement made under Section 161 of the Cr. P.C., recorded by Satnam Singh, A.S.I. (PW 11) at 7.10 p.m. on 7.4.1996. It also rests on the oral testimony of the witnesses for corroboration of the statements made in the said declaration.
The hon’ble Supreme Court upholding the decision of the constitution bench in Laxman v. State of Maharashtra (2002) 6 SCC 710, stated that, the juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth.
The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion.
But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to the there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement oven without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
The court held that the dying declaration was made by the deceased Kamlesh Rani and that there is no need to discard it and that when she made the dying declaration she was in a fit mental condition to do so and was fully conscious of what she was saying.
Kusa & Ors v State of Orissa AIR 1980 SC 559
The dying declaration for the appellant was attacked on three grounds. In the first place, it was submitted that as the deceased Antarjami was in a state of shock, it was unsafe to rely on the dying declaration; secondly it was contended that as the dying declaration was incomplete, it should not be acted upon and thirdly it was pointed out that Antarjami had implicated some persons other than the accused also in the assault on him and his brother, and therefore, the dying declaration could not be said to be true.
So far as the first contention is concerned, whether the deceased was in a state of shock, it is true that the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious injury in the abdomen which had to be stitched. The doctor was, however, not cross-examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties. On the other hand, a bare perusal of the dying declaration, and the coherent and consistent statement made by the deceased clearly reveals the fact that was fully conscious and was not suffering from any confusion or hallucination.
The deceased had clearly stated that the motive for the occurrence was the dispute about partition. He had also named the four appellants and stated that he and his brother were assaulted by voltes and lathis, and it is not disputed by the prosecution that the appellants were armed with these weapons. It is true that while naming the appellants, the deceased also named some other persons but the mere fact that those persons were not challaned does not detract from the value of the dying declaration because it may well be that what thedeceased was saying was true and the persons who were left out from the category of accused in the FIR or the challan were due to ulterior motives.
In Khushal Rao v State o/Bombait was pointed out that s 32(1) of the Evidence Act attached special sanctity to a dying declaration and unless such a dying declaration can be shown to be unreliable, it will not affect its admissibility. It was further held that although a dying declaration has to be closely scrutinised, once the court comes to the conclusion that it is true, no question of corroboration arises. The court held that there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction.
In Khushal Rao's AIR 1958 SC 22 case the court did not approve of the law laid down in the earlier decision. To the same effect was a later decision of the Supreme Court in the case of Tarachand Damu Sutar v State of Maharashtra [1962] 2 SCR 775 was rendered by five judge which took the view that once a dying declaration was found to be true, it could be acted upon without any corroboration. Thus, the view taken in Ram Nath Madhoprasad & Ors v State of'MadhyaPradesh AIR 1953 SC 420 overruled by the decision. Same view was taken in the case of Munnu Raja v State of Madhya Pradesh (1976) 3 SCC 104.
There are a number of later decisions also to the same effect. It is thus manifest that a person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact, the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the Evidence Act attaches a special sanctity to a dying person passes the test of careful scrutiny applied by the courts, it becomes a most reliable piece of evidence which does not require any corroboration. Suffice it to say that it is now well established by a long course of decisions of this court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration.
Surinder Kumar v State of Haryana 1992 Supp (2) SCC 559.
Sheema, second wife of appellant Surinder Kumar, sustained 70 per cent burn injuries on 16 May 1987, and ultimately succumbed to those injuries on 22 May 1987. Surinder Kumar and his son Sanjiv from his first wife were tried for the murder of Sheema and also for subjecting her to cruelty. The trial court convicted both of them under ss 302/34 and 498A, IPC. They were sentenced for life and a fine of Rs 500 on the first count, and rigorous imprisonment for two years, and a fine of Rs 200 on the second count. The High Court on appeal maintained their conviction and sentence under ss 302/34, IPC. They were, however, acquitted by the High Court of the offence under ss 498A, IPC. This appeal by way of special leave was by the appellants against their conviction and sentence.
The conviction of the appellants was based on the dying declaration made by the deceased in the hospital before a judicial magistrate. The doctor certified that the patient remained conscious during the period her statement was recorded. The judicial magistrate recorded a certificate that the statement of Sheema was recorded by him and it contained true version of her statement and she had thumb-marked the same. The court was satisfied that in view of the doctor's certificate, there was no infirmity in the recording of the dying declaration by the magistrate and the same inspire confidence.
The advocate appearing for the appellants contended that or Ashok Tandon (PW 11) who admitted the deceased in the hospital recorded that the patient 'allegedly' got burns while cooking food on a gas stove. He further contended that PW 11 had deposed that at the time of his examination, the patient was conscious and she told him that she got the burn injuries while cooking food on a gas stove. It was further argued that the statement made by Sheema before the doctor giving cause of her death was the earliest version, and amounted to a dying declaration. According to the accused there being two contradictory statements by the deceased, the dying declaration recorded by the magistrate was not worthy of credit and the conviction could not be based on the same. The court did not agree. It was the accused Surinder Kumar who brought his wife Sheema to the hospital and he remained present while the deceased was examined by PW 11. It was nowhere mentioned in the record that what was recorded by PW 11 was stated by the deceased. It is evident that what was recorded by PW 11 could not be the version of Sheema herself.
Had it been so, PW 11 might not have used the word 'alleged' while recording that the patient received injuries while cooking food on a gas stove. He did not mention anywhere on the record about the state of mind of Sheema. It was nowhere recorded whether she was conscious or not. The court observed that it was difficult to believe that PW 11 made his deposition in the court on the basis of his memory. It was more probable that what was recorded by PW 11 was at the instance of the husband who was accompanying his wife at the time of her examination by him. On the above reasoning, both the courts below had rejected the defence argument that what was recorded by PW 11 was at the instance of the deceased. The court saw no infirmity in the judgments of the courts below and agreed with the reasoning and the conclusions reached by the High Court.
Kishan Lai v State of Rajasthan (2000) 1 SCC 310
There is a distinction between the evaluation of a dying declaration under English law and that under Indian law. Under English law, credence and relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting imminent death. Similarly, 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 full apprehension of this danger and that the death should have ensued. Under 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 the declaration. A dying declaration is admissible not only in case of homicide, but also in civil suits. Under 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 virtuous man under 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 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 other relevant facts and circumstances of the case.
In the present case, the dying declaration was after two months of the alleged incident. It was not at a time when the deceased was expecting imminent death. Neither the post-mortem nor the deposition of the doctor carry any definite inference that the cause of death was on account of burning. There was a conflict between two dying declarations, in one there was inter se inconsistency as revealed in the depositions of the witnesses, in the other there was no naming of any accused when made before a magistrate. The court held that on such an evidence, the trial court rightly declined to base a conviction, but the High Court committed a manifest error in placing reliance on it.
Tehal Singh v State of Punjab AIR 1979 SC 1347.
The head constable who recorded the dying declaration in this case had stated in his evidence that he put questions to the deceased and recorded his answers. He stated that he recorded what the deceased stated, 'in his own way'. It does not mean that he recorded something other than what the deceased stated. All that it meant was that the language was his but the substance was that of the deceased. No infirmity could be attached to the dying declaration on this account.
The dying declaration was recorded by the head constable Kulwant Singh at the hospital in the presence of the medical officer Dr Pasricha. We were taken through the evidence of Kulwant Singh and we were The learned counsel also contended that the medical evidence namely that of PW 9, who conducted the post-mortem, is in conflict with the version given in the dying declaration that after the deceased fell down, the three appellants inflicted injuries with knives and axes. PW 9 in the cross-examination gave his opinion that the injuries as found would show that they might have been inflicted while the injured was standing. No doubt in the dying declaration, it was mentioned that the deceased was beaten by A 3 and that he had fallen down. But that did not mean that he would not have made an attempt to get up and stand.
The opinion given by PW 9 was not in direct conflict with the version given in the dying declaration. Apart from the dying declaration, Ex PI, there was also the evidence of PWs 2-4 which had been relied upon by the High Court. PW 2 after witnessing the occurrence immediately rushed to the police station and informed the police. As a matter of fact, his name was mentioned in the dying declaration itself. PW 4 deposed that he was selling groundnuts on a pushcart. He knew the accused and deposed that these accused persons attacked the deceased. The evidence of these two witnesses lent ample corroboration to the dying declaration. Therefore, we saw no grounds to interfere with the findings of the High court.
Lella Srinivasa Rao V. State of Andhra Pradesh MANU/SC/0172/2004
An important case regarding the admissibility of more than one dying declarationThe deceased was married to the appellant on 24th January, 1988. It appears that some differences cropped up between them to which we shall refer later in this judgment. On the 15th August, 1990 the deceased Bhavani set fire to herself and her 1-1/2 years old daughter at about 12.45 p.m. She had closed the door of her room and after pouring kerosene oil on herself and her child set herself ablaze. When she cried in pain her neighbours came to her rescue, got the door opened, and put off the fire. She was taken to the Government Hospital, Chirala along with child. Intimation was sent by the hospital authorities to the Magistrate for recording the dying declaration of the deceased. On such request PW-13 the II Additional Munsif Magistrate, Chirala visited the hospital at 3.05 p.m. and recorded the dying declaration of Bhavani which was exhibited at the trial as Ex.P-18. The dying declaration was recorded by him between 3.30 p.m. and 3.40 p.m. The said dying declaration is in question answer form and was recorded in the presence of the treating physician who certified that Bhavani was conscious when the dying declaration was recorded. The Munsif Magistrate read over the contents to the deceased in the presence of the Doctor and on Bhavani admitting the statement to be correct, she affixed her thumb impression on the dying declaration.There is another dying declaration on record Ex.P-19 which was recorded by Head Constable.
In the first dying declaration there is only a general allegation against the mother-in-law, accused No. 2, in the second dying declaration the allegation of harassment is against the husband as well as the mother-in-law and the immediate cause for the suicide was her being harassed by her husband, the appellant herein, after her parents had left. It cannot be disputed that the two dying declarations are not consistent with each other. The complicity of the appellant herein is disclosed only in the second dying declaration
The hon’ble Supreme Court held that having noticed the evidence on record and having noticed the inconsistency between the two dying declarations, we do not find it safe to base the conviction of the appellant on the basis of the second dying declaration. As noticed earlier, in the first dying declaration there is no mention about the appellant having treated the deceased with cruelty or of his having caused harassment to the deceased. In fact, his name does not find place in the relevant portion of the first dying declaration. The first dying declaration was recorded by a Magistrate after taking all necessary precautions. The deceased was in a position to make a statement which was certified by the treating physician who was also present when the statement was recorded. Only 5 minutes thereafter another statement was recorded by the Head Constable and in that dying declaration allegations have been made against the appellant and fact stated relating to the immediate cause which led the deceased to commit suicide which are attributable to the appellant, though there is a statement that her mother-in-law also used to harass her. Accordingly, we allow this appeal and acquit the appellant of the charge under Section 498-A I.P.C
Kulwant Singh and Ors. v. State of Punjab MANU/SC/0060/2004
The parties had disputes both as regard boundaries of their agricultural land as also as regard irrigation of their respective field. The statement of one Partap Singh on a certificate issued by the doctor that he was fit to make a statement was recorded Partap Singh, however, succumbed to his injuries. The issue was whether the statement of Partap Singh recorded on 18.6.1987 should be construed to be a dying declaration
The court observed that section 32 of the Indian Evidence Act, 1872 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. The fact that the investigating officer from the beginning intended to take the statement of Partap Singh is not in dispute. The endorsement made by the doctor in Ex.PQ/1 and Ex.PR/1 would clearly show that he had not been found fit to make such statement. Only on the fifth day i.e. 18.6.1987, the statement of Partap Singh could be recorded.
Section 32 of the Indian Evidence Act also does not state that a dying declaration should be made only in expectation of death and in that view of the matter the fact that Partap Singh died on 26.6.1987 after a period of one week is of no consequence. Explanation-I appended to Section 32 specifies that when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death where cause of death of that person's death comes into Question would be a relevant factor.
In Ramawati Devi v. State of Bihar [AIR 1983 SC 164], this Court observed :
"...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. In the instant case, the dying declaration has been properly proved..."
In Tehal Singh and Ors. v. State of Punjab [AIR 1979 SC 1347], this Court negatived the contention that a dying declaration should be made only in expectation of death, stating :
"... We do not also see any force in the suggestion of Dr. Chitale that the statement of Harmel Singh was not made in expectation of death and was, therefore, not entitled to weight. Apart from the fact that Section 32 of the Evidence Act does not require that a statement should be made in expectation of death, it is clear from the evidence that the condition of Harmel Singh was serious at that time. In the requisition made by the Medical Officer to the Police it has been clearly mentioned that the condition of Harmel Singh was serious. The very circumstance that Dr. Pasricha advised that Harmel Singh should be removed to Bhatinda Hospital for better treatment clearly indicates that the condition of Harmel Singh was serious..."
In that view of the matter, the statement of Partap Singh, in the courts opinion, would be admissible under Section 32 of the Indian Evidence Act.
Narain Singh and Anr. v. State of Haryana MANU/SC/0095/2004
Four persons faced trial for allegedly causing homicidal death of one Kaushal Singh (hereinafter referred to as 'the deceased') after abducting him. All the four accused persons faced trial for the offences punishable under Sections 364, 302, 323 read with Section 34 of the Indian Penal Code, 1860 (for short 'the IPC'). They were found guilty of the charged offences. Sentences of life imprisonment, rigorous imprisonment for 10 years and two months respectively were imposed for three offences, and fine with default stipulation in case of non-payment of fine. The statement of deceased was recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Cr.P.C.') which was treated subsequently to be the dying declaration.
The court he that 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, 1872 (in short 'the 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 at 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 base of conviction.
Suraj Mai v State of Punjab 1992 Cr. L.J.520
To prove the charge leveled against the appellant, the prosecution had relied upon the dying declaration Ex PI supported by the evidence of PWs 5, 6 and 17. Of the witnesses PW 5 had not supported the prosecution case as he had resiled from his earlier statement made under s 161, Cr PC and as such, he had been treated as a hostile witness.
It is true that the medical officer PW 4 after supporting the entire prosecution version in his chief-examination, towards the end of his cross-examination stated that he did not know whether the statement recorded by the ASI was correct or not, and he had not attested the same as he was not satisfied with the correct recording of the statement from Rajbir Singh. However, PW 4 has not stated that the deceased gave any other name except the name of the present appellant as the assailant in this case. Not even a suggestion had been addressed to the medical officer to any other witness that the deceased gave different name, but the ASI recorded the name of the appellant as the assailant. As already pointed out, the assailant was none other than the brother of the deceased himself. Therefore, it was far-fetched to suggest or even imagine that the ASI could have substituted the name of the appellant as the assailant leaving out the name of the real assailant.
Abdul Sattar v State of Mysore AIR 1956 SC 168.
Section 32, Evidence Act 1872—along with the evidentiary value of statements as to death, the dying declaration and the question of admissibility in evidence is discussed in this case study.The dying declaration in a murder case was incomplete by reason of the deceased not being able to answer further questions in his condition. at the time, the statements so far as they went to implicate the accused in the affair were quite categoric in character and they definitely indicated that it was the accused who had shot the deceased. There was also corroboration for the dying declaration.
Held that the statement in regard to the accused having shot the deceased was complete in itself and it could not be said that any further questions would have elicited any information which would run counter to the same. Under the circumstances, the dying declaration, though incomplete otherwise, was complete so far as the accused having shot the deceased was concerned and could certainly be relied upon by the prosecution. The corroboration of the dying declaration invested it with a stamp of truth which went a long way towards incriminating the accused.9"
It was not correct to convict an accused person merely on the evidence of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination. Moreover, 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 .
We are of the opinion that these observations do not help the appellant at all. In the dying declaration before us, even though the same was incomplete by reason of the deceased not being able to answer further questions in his then condition, the statement so far as they went to implicate the Accused No 1 in the affair were quite categoric in character and they definitely indicated that it was the Accused No 1 who had shot the deceased.
Kishan Lai v State of Rajastharf (2000) 1 SCC 310
There is a distinction between the evaluation of a dying declaration under English law and that under Indian law. Under English law, credence and relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting imminent death. Similarly, 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 full apprehension of this danger and that the death should have ensued. Under 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 the declaration. A dying declaration is admissible not only in case of homicide, but also in civil suits.
Under 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 virtuous man under 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 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 other relevant facts and circumstances of the case.
In the present case, the dying declaration was after two months of the alleged incident. It was not at a time when the deceased was expecting imminent death. Neither the post-mortem nor the deposition of the doctor carry any definite inference that the cause of death was on account of burning. There was a conflict between two dying declarations, in one there was inter se inconsistency as revealed in the depositions of the witnesses, in the other there was no naming of any accused when made before a magistrate. The court held that on such an evidence, the trial court rightly declined to base a conviction, but the High Court committed a manifest error in placing reliance on it.
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