This article is written by Shruti Chincholkar pursuing a Certificate Course in Competition Law and Enforcement.
This article has been published by Sneha Mahawar.
The process of the administration of justice involves various steps. From registration of FIR, investigation, and arrest of accused persons to the actual trial/hearing including submissions from both the parties (plaintiff and defendant in civil matters and prosecution and defence in criminal matters). The process also includes submission and admissibility of the evidence. Evidence is any document, object, or statement that confirms and proves a certain fact. The study of the law of evidence has the sole objective to prove the important facts of a legal case to satisfy the court of law to arrive at a decision.
A dying declaration is considered as judicial evidence. The meaning of judicial evidence is any documents, objects, or facts that can be accepted by a court of law as evidence of facts in any case.
The “hearsay evidence” is inadmissible in the court, which means if a person gives any statement or information without direct experience but from the word of mouth of some other person, then such evidence cannot be cross-examined, hence deemed inadmissible in the court of law.
A “dying declaration” has been ruled out by giving it admissibility in the court by the very presumption that an individual will not have an ulterior motive while expecting his own death. Considering the present scenario, “dying declaration” as a form of evidence has been denoted as a very important and indispensable end for providing justice. Various heinous offences wherein there are no witnesses, “truth sits on the lips of a dying person”, especially the victim. The need for a dying declaration in various cases on the principle of necessity has given it admissibility as evidence in the courts to determine the facts concerning the cause of the death of the declarant.
The statute governing the law of evidence in India states that the evidence must prove every important fact of a legal matter. The dying declaration and its admissibility have been provided in “subclause (1) of Section 32”.
“When it relates to the cause of death. —When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
Any person including a magistrate, family members, friends, public servants, or medical professionals who are mentally fit can record a dying declaration. The paper also analyzes the competency and persons making a statement of dying declaration. Corroboration is a very important rule concerning dying declaration but if the court is satisfied with the truthfulness and voluntary nature of the statement then it may pass its judgment without corroboration.
It is pertinent to note that corroboration was not compulsory before 1974. In “Rashid Beg v. State of Madhya Pradesh”, Supreme Court decided, “where the dying declaration is suspicious, it should not be acted without corroborative evidence”. Furthermore, in the case of Ramesh Kumar v. State of Chhattisgarh the court also observed the probability of a dying declaration with a motive to hide the truth. Furthermore, the court also held that “dying declaration” is hearsay evidence, which cannot be tested, and therefore cases should not solely be dependent on such evidence. In cases of dowry death wherein various young brides either get burned in a kitchen fire or try to commit suicide due to the physical and mental harassment by their husband or their in-laws. Various case laws suggest that dying declarations by these young brides as accidental deaths are false in nature. The researcher will provide a critical analysis of landmark case laws of recent times to understand the stand of courts on the reliability and admissibility of dying declarations.
The paper will also provide a critical analysis of the test of admissibility, evidentiary value, a test of reliability, and test of credibility, which is used by courts for determining the reliability and truthfulness of the statement made by the dying declaration in India. The paper will compare the differences between “Section 32(1) of the Indian Evidence Act, 1872” wherein wider interpretation and scope is given to dying declarations as an exception to the general rule. Whereas, “Rule 804 (b) (2) of Federal rule of evidence”, which states that an individual should make the statements only when he has knowledge of his impending death only in the cases of homicide.
After a thorough discussion through analysis of interpretation of, “Section 32(1) of the Indian Evidence Act, 1872”, the researcher will discuss loopholes and challenges. This research paper aims to understand the legal theory behind the dying declaration. It tries to critically analyze the loopholes in the “Section 32(1) Indian Evidence Act, 1872”. The researcher has also analyzed the current trend and stance of the courts through a critical analysis of the recent precedents and the nature of cases.
Keywords: – Dying declaration, Indian Evidence law, Justice
Concept of Dying Declaration
According to the Black’s Law Dictionary, “A statement by a person who believes that death is imminent, relating to the cause or circumstances of the person’s impending death. It is also termed as a deathbed declaration or ante mortem statement.” The validation of “dying declaration” comes from the Latin Maxim, “Nemo moriturus praesumitur mentire”, which means, “a person will not lie on his deathbed.”
The conception of legal theory behind the “dying declaration” requires the understanding of the rule of hearsay evidence and its exception. “The most fundamental principle of the law of evidence states that the direct evidence must be used to prove the facts of the legal matter”. Irrespective of the importance of the evidence, it is of no use unless it is admissible in a court of law. According to “McCormick” the hearsay evidence, “is testimony in court or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter”.
“Dying Declaration” simply refers to a written or oral statement of the relevant facts made by an individual who is dead. The dying declaration has immunity from the principle against hearsay evidence. The dying declaration shall be deemed to be incomplete unless the full name and the detailed address of the declarant and the accused involved in it is given. Henceforth, where the declarant of dying declaration only said the first names like to the name of the accused, the court held that such dying declaration shall be regarded as incomplete and the prosecution version cannot be accepted. It is important to take into account that admissibility of dying declaration is not restricted to the individual actually causing the death of the declarant but its scope of admissibility is widened to other individuals who participate in causing the death of the deceased declarant.
The “dying declaration” by an individual should be only in relation to the reason of his death or any incidences consequential in the death of the declarant. The statement made by the person does not importantly need to be conscious or have knowledge of his/her intending death. The law of evidence expands the admissibility of dying declaration including civil and criminal in India In the case of Moti Singh v. State of U.P expanded the interpretation of this provision by stating that the phrase “any of the circumstances has broader amplitude”. The court has given a very broader interpretation to this subsection. The rule of proximity having nexus with the person’s death directly or indirectly is also covered by this provision. “There does not have to be a direct nexus between circumstances and death”. There are several principles on the admissibility of “dying declaration”, which are derived through various case laws.
Condition precedents of dying declaration In the Indian context
Although the dying declaration stands to not be recorded in the court, also nor it is available for the cross-examination by the accused, but still it stands to be admissible in evidence as opposed to the general rule against hearsay evidence. There are numerous grounds pertaining to the validity of the admissibility of a dying declaration in a court of law. The foremost ground is that the only principal eye-witness to the crime is the declarant (victim), then the next ground is the person being close to the impending death forms a sanction which is equivalent to the mandate of an oath. Lastly, “a man would not like to meet his maker with a lie in his mouth”.
Essentials of dying declaration
The below mentioned are quintessential are to be met:
- Firstly, The declarant has to be aware or conscious that death is impending.
- Secondly, The declarant shall only make a statement in respect of his/her belief for the reason or circumstances of his/her death.
- Thirdly, The statement shall only be recorded by the individual whose circumstances of death are concerned.
- Fourthly, The statement made by the declarant should be honest and credible.
It is also pertinent to note that in the case of Mallella Shyamsunder v. State of Andhra Pradesh the apex court made two additions to the essentials of a dying declaration which are as follows:
(v) The declarant shouldn’t make the statement on tutoring or prompting.
(vi) The court has full authority to check the authenticity of the statement made by the declarant for checking whether it was tutored or was there any motive of revenge.
Recording of dying declaration : Procedure in law
There is no straight jacket procedure laid down for recording of a dying declaration by a declarant, and it is also not necessary to be recorded by a Magistrate. Going through the general principle, it is important to get the evidence of the person recording such a declaration from a certified medical professional. It also has to be acknowledged that the courts shall be cautious and scrutinise the dying declaration with required care in matters where the prosecution solely relies upon the dying declaration by the conviction of the accused. There is no rule mandating the corroboration of a dying declaration, it is a rule of prudence and not a rule of law. The accused can be convicted on the basis of a dying declaration only when the court acknowledges that the declaration made is voluntary without any tutoring and it is truthful in its whole content.
Recording of dying declaration by Magistrate
In various circumstances, the dying declaration is recorded by the Magistrate. The evidentiary value of a dying declaration is completely dependent upon the facts and circumstances of the matter. In addition. A dying declaration can alone be the basis for the conviction of the accused given its voluntary nature and the facts and circumstances of a particular case. Where the dying declaration was sufficiently proved; there was no doubt with regards to the medical evidence and such declaration was corroborated. Therefore, the court held the accused to be guilty on the basis of such a declaration.
In the case of Pandian K Nadar v. State of Maharashtra as well as Prem Chand v. State of U.P such declaration was recorded by the Special Executive Magistrate, who acknowledged that the declarant has the physical and mental competence to record the dying declaration which was also supported by the Police Officer. In such cases dying declarations were held to be valid despite the lack of evidence of a certificate from the medical professional. In the case of Amir Jamal Khan v. State of Maharashtra scenario where a Special Magistrate recorded a dying declaration despite he was not obliged to do so, such a dying declaration was held to be valid as all the due measures were taken care of which trusted the confidence. In the case where the dying declaration was discarded by the court where there was the absence of the signature of the deceased declarant as well as where the date and time of the recording were missing, such declaration was not admitted in the court of law because it gave the opportunity to blemish upon the its genuine.
Form of dying declaration- question-answer form
The form of recording a dying declaration is usually in a question-answer format. However, a dying declaration cannot be rejected on the only basis that it was not recorded in the question-answer format. A dying declaration should be recorded in a short and to-the-point matter. Duplication is strictly prohibited with regard to the dying declaration. In the matter of Ram Bihari Yadav v. State of Bihar it was observed by the court that a statement recorded in a form of narration has the possibility of being more natural and reflects the truth of the cause of death of the declarant. However, it is the case where the witness who was the recorder of the dying declaration specifically stated that the deceased declarant gave answers to the questions. But the declaration which was submitted before the court was not in the form of a questions-answer, such declaration was discarded stating that it does not amount to the material fact.
Oral dying declaration
A dying declaration can be recorded orally. An oral dying declaration refers to the statement made by the declarant which isn’t recorded and it has to be represented by the witnesses out of the brain memory. The apex court has given a rule that the exact words of the declarant shall be reproduced before the court. Any discrepancies or contradictions in the reproduction of the exact words shall have an effect on the evidentiary value of such oral dying declaration. It is to be noted that an oral dying declaration may form a factor of conviction in a particular matter. However, such an oral dying declaration should entrust confidence and should be free from any imperfection. The courts follow the rule of prudence which states for corroboration of oral dying declaration for entrusting the court with confidence and credibility.
Fitness of the declarant
The physical and mental competence of the declarant making the dying declaration is a condition precedent for the recording dying declaration. The court has to be entrusted with satisfaction and confidence that the declarant was perfectly fit and capable to record his/her statement at the time of recording of the dying declaration. In the case of Dandu Lakshmi Reddy v State of AP where, the parents of the deceased declarant said that their daughter had a mental illness, such facts cannot be kept aside by the court for reaching its admissibility as well as reliability. The quintessential way to prove the fit state of mind of the declarant is through presenting a certificate of fitness from the medical professional stating that the declarant is fit and capable for making such statements. However, the omission to submit the certificate of fitness isn’t a condition precedent for the rejection of such a dying declaration. The important aspect required by the court is that the individual who records such a dying declaration shall be confident and satisfied that the declarant was fit and mentally capable for making such statements. The presentation of a certificate of fitness can be regarded as a rule of caution. A credible and honest dying declaration can be accepted before the court even otherwise.
Admissibility of dying declaration in India
Section 32 of IEA states that statement made by a person relating
Section 32(1) in The Indian Evidence Act, 1872. 1 when it relates to the cause of death. —“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.”
The present chapter will present an interpretation of Section 32(1) IEA by the Indian Courts by understanding the different aspects and conditions of precedents for analysing the admissibility of a dying declaration.
Statements, written or verbal, of relevant facts
The foremost component of Section 32(1) states that a dying declaration can be recorded in writing as well as in oral form pertaining to the relevant facts. “Verbal” refers to the words. However, it is not mandatory that such words have to be spoken, signs and gestures of another individual like nodding or shaking the head also account under this expression. In the case where the deceased declarant was interrogated by several people shortly prior to her death about the cause of her injuries inflicted on her. She didn’t have the capability to speak but she made signs and gestures. Such evidence was held to be admissible as the signs and gestures made by her accounted for the answers to the questions of her own circumstances of death and came under the expression of “verbal statements”.
Cause Of death
The phrase used under the aforementioned provision basically means that a dying declaration will be admissible before the court only when the statements recorded by the declarant are the cause or reasons for his own death. The interpretation of “death” expands to both homicidal as well as suicidal death. It is also important to note that relevancy shall also be regarded to statements made by an individual pertaining to the reason of his/her when the reason for death comes into question irrespective of whether that individual was not under the expectation of death at the time of recording such statements. In addition, general connotations of the fear or suspicion of the person or otherwise which do not directly correlate with the cause of death are inadmissible in the court of law. However, the kind of information given by the deceased declarant pertaining to the circumstance of his death is admissible under evidence law.
The statements pertaining to the cause of death are not restricted to the mandate of a direct link between “circumstances” and death. In the case where the deceased declarant stated prior to her death that the accused was holding a gun who was standing in front of her and it was the reason for her death and henceforth was admissible under Section 32(1) of IEA.
The dying declaration where an individual makes a complaint regarding his apprehension of impending death by the person whose conduct is the root for such apprehension and is accused with the death of the declarant, such complaint shall be admissible in the court. In the case where the deceased wife made a complaint to the Police against her husband that she apprehends her own death by her husband, such statement was held to be admissible in court.
Circumstances of the transaction
The word “circumstances” has been given a restricted interpretation. It is more limited than “circumstantial evidence” and res gestae. “Circumstances of the transaction” under Section 32(1) means that circumstances should have some proximity between the event of death and it must only include events that resulted into the death of the declarant making such a statement. The admissibility of a dying declaration is only possible if the reason or occasion of the declarant’s death comes into question before the court. There is no compulsion as to making the statement post the transaction or event has been completed or the declarant making such statement shall be near death or “circumstances” only include the acts or omissions only done at the location or place where the death occurred.
The test of the reliability of dying declaration shall require the courts to keep into consideration, the facts and circumstances he chance for the dying declarant to observe such as at the time of the offence whether it was bright or dark, whether the competency and capacity to record statement is disturbed or not, whether there are any contradictions with respect to the dying declarations made more than one time or not and whether there was a motive of vengeance or tutoring from interested parties or not. In the judgment of Munnu Raja v. State of MP the court stated that the law pertaining to the admissibility of dying declaration should be applied and understood with caution because the declarant making such a statement shall not be cross-examined by the accused. In addition to this, the court also stated the requirement of corroboration for admissibility of dying declaration is not a rule of law but a rule of prudence.
“Proximity between the time of the statement and that of death”
The test of proximity was first questioned before the court in the case of Sharad v. State of Maharashtra. The court held that the dying declaration was admissible because the statements made by the declarant were not remote in duration to lack their proximity with the circumstances of the death. The court also went on to make several propositions: (I) A dying declaration shall be valid when it is made by a person regarding the circumstances or reason of his death, irrespective of whether such death is homicidal or suicidal in nature. (II) The test of proximity cannot be moulded into a straight jacket formula as it depends on the facts and circumstances of different cases. In the matter, the Hon’ble Supreme Court stated, “The prosecution had not examined the doctor who made the endorsement on the dying declaration that “the patient was in a fit state of mind to depose”. For example, when the death of the declarant is the result of a prolonged event, then a statement made on the occasion of the death or while recording such declaration must be understood and interpreted in its full context with the past events.
Admissibility of more than one dying declaration
The rule of law pertaining to the validity of a dying declaration states that the court must be satisfied with the credibility and truthfulness in the dying declaration without any prompting or tutoring and also states that the declarant making such declaration is physically and mentally competent and capable to record his/her statement. However, in the circumstance where the same declarant makes multiple dying declarations, such declarations will be taken into consideration as one for their validity and evidentiary value. In the case of Gangaram Gehani v. State of Maharashtra if there are contradictions between any of them on the material part, then the court should try to resolve such contradictions. If no premise could explain such contradictions, then such dying declaration might be rejected by the court. In a circumstance, where there is a reasonable justification, then such a statement can be equated with an omission stated in Section 161 of the Criminal Procedure Code, 1908 which shall be taken into account as a matter of fact. In the case where the deceased declarant did not make an entire statement in her first dying declaration and made it in the following dying declaration with the corroboration of medical evidence, then such dying declarations cannot be rejected by the court.
This chapter is of utmost importance as it explains the findings and analysis from this attempt of research conducted in this paper. It is well understood that a dying declaration stands to be an exception to the rule of the hearsay form of evidence in the courts. Although hearsay evidence is discarded from the court due to its inconclusiveness and lack of accuracy the dying declaration is admissible in the court without any rule as to the strict corroboration. The basic premise for this exception and its admissibility is that a person would not lie and enter the afterlife. Through understanding the concept and condition precedents, facets pertaining to law on dying declaration in India list out specific events or facts which are the reasons or circumstances of the death of the individual making such declaration. The court through various judgments has taken into account various measures for maintaining honesty and trustworthiness while recording dying declarations.
While analyzing the procedure for recording such a declaration it has to be noted that the court has given a wider interpretation rather than the format prescribed (question-answer), courts take into account the mental and physical competency of the declarant as well. The most important aspect which has been reiterated in several judgments is that the dying declaration should not be tutored or should have the motive of vengeance behind it. There are several tests including tests of reliability and credibility for entrusting the honesty of a dying declaration with the courts. However, there is a greater probability that a declarant can falsely make such a declaration with the motive of revenge or false information due to his/her misunderstanding of the chain of events. However, with understanding the analysis and interpretation of section 32(1) of the Act, it is clear that courts are becoming cautious to the trustworthiness of dying declarations due to their chances of being tutored or false. The research has listed down a few recommendations as follows:
- The rule of corroboration is suggested to be complied with mandatorily in the cases where the prosecution solely relies on the dying declaration for conviction of the accused since such declaration is not cross-examined by the accused there is a high probability of its falsity and dishonesty.
- The lawmakers shall give out detailed guidelines forming rules and regulations for a uniform procedure of dying declaration for less procedural discrepancies and a simpler method for courts to examine the same.
- The test of reliability and credibility is not a straight jacket normative for checking the trustworthiness of a dying declaration. There is a need for stringent measures which shall make sure that the accused is not maliciously framed by the declarant due to his/her ill motives.
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