This article is written by Kaustubh Srivastava, a first-year law student at Symbiosis Law school, NOIDA. The following article is written during my internship at iPleaders.
This article addresses the evidence of a dying declaration and critically analyses its aspects regarding the rules of its admissibility in a court of law. The rule of admissibility of evidence in Indian courts is governed by The Indian Evidence Act, 1872, which is referred to throughout the article for the purpose of citing relevant provisions applicable for determining the admissibility of a dying declaration.
A dying declaration is a piece of evidence relevant in criminal proceedings as it refers to the cause of death of a person, therefore while dealing with its admissibility, it is imperative to make sure that there is surety beyond any doubt while convicting the accused or else it may be an act of injustice on behalf of the court.
Expressing particularly about the term “dying declaration”, though does not have an exclusive definition, it is a legal concept that refers to an oral or written statement given by a person at the point of death, which concerns the cause of his or her death. Knowing that any evidence in the court is to be cross-examinable to satisfy the court, it must be mentioned that the dying declaration stands as an exception to the legal rule of admissibility of oral evidence as given under the Indian Evidence Act, 1872.
Legal provision of Dying Declaration
The legal provision to be mentioned primarily is the one regarding oral evidence, i.e. Section 60 of the Indian Evidence Act, 1872. It states that any evidence perceived by the senses of a person must be presented before the court by the person himself. It further states that these will be considered the evidence only when it is facts and not interpretation of a story by the witness. Knowing that a dying person cannot represent himself in court, the rule of admissibility of a dying declaration stands as an exception to the aforesaid rule of oral evidence.
Section 32 of The Indian Evidence Act, 1872
The admissibility of dying declaration has been explained under Section 32 (1) of the Indian Evidence Act, 1872 which states that such a statement can be proved when it 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. The statement will be relevant in every case or proceeding in which the cause of that person’s death comes into question. It is said that a man will not meet his maker with lying on his mouth (Nemo mariturus presumuntur mentri). In our Indian Law, it is a fact that is believed that a ‘dying man can never lie’ or ‘truth sits upon the lips of a dying man’.
Admissibility of Dying Declaration
The criminal examination under the law is an aspect that cannot be tampered with or compromised. One major reason is so that the principle of ‘Ubi Jus Ibi Remedium’ is upheld. The legal maxim provides equity to all and means that for every wrong there is a remedy. Keeping in mind the Indian Evidence Act, 1872, the hearsay evidence are regarded as inadmissible in a criminal trial as they have no factual stand in the case. These would be considered as hearsay and not oral evidence and therefore, cannot lead to valid admissibility of a declaration of the accused as a criminal.
Rule of Res Gestae
Then again, there is a rule called ‘Res Gestae’ which is a Latin word meaning ‘things are done’. It’s a rule of law of evidence and stands as an exception to the hearsay rule, that hearsay is not admissible evidence in a court of law. It is a spontaneous declaration made by the victim post an event takes place and before the mind has an opportunity to cook up a false story. This is a concept which, as a matter of principle, is employed in the English system of administration of criminal justice known as “res gestae”.
The principle has been explained by Lord Normand in Teper v. Reginam (1952):
“Nevertheless, the rule (Hearsay) admits of certain carefully safeguarded and limited exceptions, one of which is that the words may be proved when they form part of the res gestae… It appears to rest ultimately on two propositions- that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of truth.”
Another significant decision in relation to the Res Gestae exception is that of the Privy Council in Ratten v. The Queen (1971), which talked of the admissibility of the statement of a telephone operator who received a call from the deceased minutes before she was allegedly murdered by her husband. To this, the Council declared the statement as original evidence of ‘verbal facts’, not as hearsay evidence, as the object of admitting the statement was not to establish the truth of the statement made, but merely to establish the fact that it was made.
Observations of The Privy Council
“Words spoken are facts just as much as any other action by any human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay arises only when the words that are spoken have relied upon a ‘testimony’, i.e., as established by some fact narrated by the words”. Therefore, as per the observations made by the Privy Council, the rule Res Gestae applies only when one is able to determine that the statement provided by the deceased is spontaneous and the fact that it forms a factual flow of relevant information without any falsification.
Proximity with Cause and Death
In several cases, the Supreme Court has settled the legal proposition that there has been a proximate relationship between the statement and the circumstance of death. For instance, in the case of Sharad Bhirdichand Sarda v. the State of Maharashtra (supra) (1984), the declarant i.e. a married woman had been speaking to her parents and other relatives and also writing to them expressing the danger to her life. She lost her life three or four months after that. The Court held that the statement and time of death were not too remote in time from the point of death. In this case, the Court also held that Section 32 (1) of the Indian Evidence Act, 1872 applies to cases of suicide also.
Similarly, in the case of Sharad Bhirdichand Sarda v. the State of Maharashtra, under Indian law, the court stated that it is not necessary that the declarant should be under any expectation of death i.e. apprehension of death is not necessary nor that statement must be made to a magistrate. If the declarant has died and the given statements explain the circumstances causing his death, then the statement will be relevant even if no cause of death had been present at the time of the making of the statement, and will be admissible as dying declaration.
Need for Corroborative Evidence
Knowing that the Supreme Court has settled the legal proposition that there needs to be a proximate relationship between the statement and the circumstance of death. It is evident that the fact that there is a relation of the evidence with death, is a necessary factor to be analysed as per the guidelines of the court.
Then again, keeping in mind the above factors, we still need to consider cases like the case of Ram Bihari Yadav v. State of Bihar (1998), where the court recognized dying declaration as a substantial piece of evidence while opining that though the dying declaration is indirect evidence which is a species of hearsay evidence, yet it is an exception to the rule against admissibility of hearsay evidence. Here the Court stated that it is substantive evidence and like any other substantive evidence requires no corroboration for forming the basis of conviction of an accused. This says that if there is death and the statement evidently point at the events and the reason, then the process of cross-examination is unnecessary, which clearly goes in contradiction to the previous judgements where the need for proper corroboration and interrogation is mentioned as a must.
Meaning that this statement cannot have a specific format and a rigid rule to be admissible. It has to be evaluated from case to case keeping in mind the contents and evidence and then overall be evaluated to make it a just judgement.
How to record a Dying Declaration?
A dying declaration can be recorded in three forms:
- Actions (implied through signs and gestures)
Oral and Written Statements
Under Section 32, oral and written statements of a person before death are said to be dying declaration if they signify the cause of his/her death and also if it is clear through the statements that the victim had justified the amount of time to see the accused and properly identify him/her. For example, a statement of F.I.R made by a person who got hit by lathi will be considered as an oral declaration under Section 32.
Statements in the Form of Gestures and Signs
In Nirbhaya case 2012, a bench of Justice Dipak Misra, R Banumathi and Ashok Bhushan observed that the dying declaration should not necessarily be made by words or in writing and it could be through gestures as well. Not just words but even gestures can be made admissible in a court of law.
Gestures and signs can shape dying declaration in any event, when the victim doesn’t express a word. The Apex court expressed that the evidentiary estimation of the gestures and signs will have to rely upon specific variables like who recorded the statement, what are the signs, what were the inquiries posed, was the inquiries posed were basic or not and so on. Gestures can be hard to decipher yet this doesn’t imply that the accused can roam freely after causing harm to somebody. In the case of Queen-Empress v. Abdullah (1885), the throat of the deceased girl was cut and because of that, she was unable to speak. Hence, she indicated the name of the accused with the help of signs and though hand gestures. Therefore, hand gestures and signs were admissible as a dying declaration.
Factors of Admissibility of a Dying Declaration?
Realizing that evidence is of utmost importance while determining a criminal suit, there arises a need to analyse the grounds on which these pieces of evidence are admissible in court. Similarly, there are factors that dictate the admissibility of a dying declaration. The relevant factors in my views, the factors that should be kept in mind to make a dying declaration valid, are listed below.
Who can Record a Dying Declaration?
A judicial magistrate is required to record the dying declaration statement by the victim. This is done after the evaluation by the doctor that the victim is in a state of mind to be giving the statement. The court has further notified that language is not a barrier to recording the dying declaration and its admissibility. It is said that proper care is to be taken when a statement, for instance, in Urdu is recorded in English, then every statement translated is to be carefully interpreted and properly justified.
Need for a Medical Certificate
Fitness of the victim should be examined while recording the statement as the victim could be giving stories instead of acts due to the presence of drugs. It is the judicial magistrate’s job to satisfy himself that the victim is in a fit condition to give the statement. This is done by obtaining a certificate from the doctors examining the victim. In Kushal Rao v State of Bombay (1958), The Supreme Court of India states that the court needs to be satisfied with the victim’s mental fitness to make the statement at the given moment and the fact that the victim had the opportunity to observe and identify the accused. The victim should not be making the statement under any influence as under such a state it cannot be determined if the victim’s narrative is fact or fiction.
In the Absence of a Medical Certificate
Then again, in the absence of a doctor or the medical certification from a doctor the judicial magistrate can record the statement without acquiring the medical certificate, but it is then the magistrate’s responsibility to justify in court why he found in indivisible to have a doctor’s presence. The only time that the medical certificate is given less importance, or its omission is irrelevant is when the case is not solely dependent on the dying declaration.
Format of the Statement
Question answer format is to be maintained. If the declaration isn’t in this format then it cannot be discarded for that reason alone. This is because a narrative statement is more like the incident that is perceived by the victim and therefore cannot be taken as the sole reason for accusing the person. In Kushal Rao v. the State of Bombay (1958), the supreme court clearly summarized its proposition that “a dying declaration recorded by the Magistrate in question-answer form stands on a much higher footing”, meaning that a declaration not in such a format is not deemed inadmissible, rather any statement recorded in such a manner is of higher importance as it has comparatively less scope for manipulation of facts.
Admissibility of an Incomplete Statement
Incompletion of statement is when the deceased is unable to complete the statement (for example, the motive for the crime) then the declaration is inadmissible. Then again, if the deceased has given a full narrative story but was unable to answer the last formal questions regarding what more he wanted to say, then the court says that such a declaration can be relied upon. To put it in easier terms, any statement where the victim dies before or is unable to tell the motive for death or other relevant factors which are crucial in determining whether is accused is guilty or not, such a statement cannot be accepted. At the same time, if the deceased has covered all crucial aspects but is unable to answer the last formal question, such a statement is admissible and can be relied upon.
Being fully aware of the fact that the concept of dying declaration is an exception to the rule of oral evidence stated in Chapter IV of The Indian Evidence Act, 1872, one must not overlook what the actual provision states and only focus on the exception. Under Section 60 of the Indian evidence act 1872, it is clearly mentioned that in case of any oral evidence, the person who admits having heard or having seen it or may have perceived it by any other sense is required to come and present the same in the court, i.e. it is considered his/her evidence in court. In simple terms, any oral evidence is admissible when presented in the court and may be examined by the court, as the case may require it to be. Dying declaration on the other hand, as we have already covered earlier, can not be examined in court as the person who gave the declaration is not present to testify for his/her stance, hence it is hearsay.
Further covering aspects of admissibility of dying declaration, we know that the actual rule, i.e. Section 60, states that oral evidence must be direct. A dying declaration may or may not be direct as the person who is giving the declaration and the person recording it needs the exact facts, no stories, but the victim might not even be in a state to finish the statement of facts or dictate the order of facts, let alone provide justification for his testimony (dying declaration). Only by analysing these basic requirements stated under admissibility of oral evidence, we can easily identify the fundamental flaws in having an absolute rule for admissibility.
Moreover, in The Constitution of India and the principle of Adversarial Litigation and Criminal Law, it is said that 99 criminals can be foregone but not a single innocent should be convicted. On this ground, the proper evaluation of admissibility is a must and it should be determined that the accused is guilty beyond a reasonable doubt, as this is in case of death which is not a minor offence.
The fact that the statement cannot be cross-examined is a critical aspect of my views as then there is no means of testing the truth behind the statement. Hence, I feel that unless the declaration has a proper connection with the reason of murder and other evidence also hint towards the likely hood of the statement being true, only then should the statement be admissible and be considered as evidence and not hearsay.
A dying declaration is a piece of important evidence which should be carefully recorded as it is one of the crucial statements admissible in court before the death of the victim stating the reason and circumstances leading to the death of the victim. It is also necessary to ensure that it is complete and should not be tampered with.
Furthermore, the Supreme Court of India said that the veracity of the dying declaration has to be taken into account to make sure there is no inconsistency, as this is a statement that cannot be cross-examined and hence, it is to be carefully examined to be admissible in the court of law.
Similarly, in my opinion, as stated before, a dying declaration should be admissible exclusively after proper evaluation and there should be no set rule for admissibility, it should firmly be as per the facts of the case. If such a statement is to be given a set standard format then many guilty may run free, more than that, an innocent may be convicted which goes against the fact that law is made for the better good of the individual and should have just execution.
- (1984) 4 SCC 116
- Kulwant Singh v. State of Punjab, AIR 2004 SC 2874
- Bhagirath v. the State of Haryana, (1977) 1 SCC 481
- Sharad Bhirdichand Sarda v. State of Maharashtra (supra)
- AIR 1998 SC 1850
- Kushal Rao vs The State of Bombay on 25 September 1958 AIR 22, 1958 SCR 552
- The Evidence Act, 1872 (Bare Act)
- The Constitution of India (Bare Act)
- Jstore – Adversarial and Inquisitorial model of law (Article)
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