This article is written by Uday Bhatia, a law student pursuing BBA LLB from Vivekananda Institute of Professional Studies (affiliated to GGSIPU, New Delhi). This article gives the wholesome perspective with respect to dying declaration & its applicability in Indian context & its departure from Common Law.
Someone has rightly said, “a dying man doesn’t lie”. Dying declaration is also based on the very same adage. The statutory recognition of the dying declaration is bestowed in the Indian Evidence Act, 1872. In layman’s language, it states that any person making a statement (whether oral, documentary or partly oral and partly written) disclosing the ‘the reason or cause of his death’ or ‘the circumstances of transactions resulting in his death’.
The same was observed by Privy Council in the leading case of Pakala Narayan Swami vs Emperor, wherein the deceased husband intimating his wife about the news of the recovery of debt owed of ₹3000/- by the accused, amounts to circumstances of transaction amounting his death, even though he wasn’t necessarily in the apprehension of death. The dying declaration is against the general rule of “hearsay evidence” a.k.a ‘no evidence’, which simply states that a person can’t state on record, based on a statement heard from a third person. It implies that for a person to be able to submit evidence, they should have necessarily perceived it by his or her sense. Thus, ensuring the information is direct, as the more channels it flows, chances of distortion increases manifolds, leading to inaccurate information. The rationale behind considering a dying declaration as legally relevant and admissible as evidence is the plea of “necessity”, as the victim is the only eye-witness of the crime, exclusion of his or her statement might defeat the ends of justice.
The second reason is more so, related to moral obligation. It is considered that a dying person making any statement, has no motive or inducement to lie, with the apprehension of his or her quietus, nothing to lose and shedding any additional burden from the soul. Thereby, it creates a sacrosanct obligation on him or her which is equivalent to an obligation to speak the truth on oath. It is based on the legal maxim “Nemo Moriturus Praesumitur Mentire” i.e., a man will not meet his maker with a lie in his mouth. Now, considering the evidentiary weightage or value of dying declaration as a sole basis of death, there are no fixed parameters regarding the same. It depends on the facts and circumstances of each case. In some cases, the conviction is solely based on dying declaration, while in others it is not given much heed.
Albeit, the general rule propounded by Hon’ble Supreme Court in Mukesh vs State for NCT Delhi is that the dying declarations cannot be the sole basis of conviction, unless it is corroborated, as a rule of prudence. It must also be ensured that any statement made as a dying declaration must be voluntary and not the result of tutoring, prompt or imagination and the maker of the statement is in fit medical condition to deliver it.
Indian Law v/s Common Law
Dying declaration is the by-product of colonialism. It is, therefore, evident that it is derived from common law. Though, post-independence India refurbished and revamped its legal structure, it customized, by borrowing in bits-and-pieces the viable portions of the British colonial laws through screening the test of constitutionality, thereby making it suitable to the socio-economic environment of the country. This has rendered deviations in the interpretation of it. So comparative difference in the legal status of dying declaration is as follows:
Admissible in all proceedings, civil or criminal.
Admissible in a criminal charge of homicide and manslaughter.
There is no requirement of impending sense or apprehension of imminent death.
There is a requirement of impending sense or apprehension of imminent death in the mind of the maker of the statement.
There is no statutory pre-set form or format of recording dying declaration, but the Indian judiciary has suggested an apt method of recording a dying declaration is in the form of a questionnaire (question-answer form). But sometimes due to the gravity of the circumstances persisting such as the pain and agony of the victim suffering, the Hon’ble Supreme Court has held in Surinder Kumar vs State of Punjab that it doesn’t warrant and make it feasible to record the statement in the prescribed manner.
It does not entail that dying declaration recorded in ‘any other’ method or procedure would stand as rejected. It is only due to the rule of prudence that since in the case of a dying declaration the defendant doesn’t get the opportunity for cross-examination, even though such a statement bears high redemption value, the Hon’ble Supreme Court as held in Satish Chandra vs State of Madhya Pradesh takes precaution by insisting on corroboration of the statement. The reason behind it may not necessarily be falsification, but could be inaccuracy or error of human judgement, etc. which could be very counterproductive in proving the innocence of the accused.
This was also recognized by Hon’ble Supreme Court in Narender Kumar vs State of NCT of Delhi, that the dying declaration recorded by gestures, words, signature or thumb impression, can’t be denied as inadmissible as dying declaration merely on the ground that it is not in the “desirable” question-answer format, that is only prescribed for viability and reducing the chances of distortion. Issuances of such guidelines is only for ensuring genuineness, to hold its high evidentiary value status. It shouldn’t be affected or discredited due to trivial procedural issues. If the statement is recorded after receiving the fitness of mental condition of the deceased from the doctor and recorded by Magistrate exactly in the words of the deceased, also ensuring himself or herself of the capability of delivering a statement suitable from a legal standpoint.
In Mukesh & Anr vs State for NCT of Delhi, infamously known as the Delhi Gang Rape case, the dying declaration of Nirbhaya was recorded in series. First, by her doctor, then by the magistrate (recorded with the help of gestures and nods) which was rightfully accepted by the Hon’ble Supreme Court as a valid dying declaration.
To resolve the generality of the open-ended criteria of recording dying declaration the judiciary with various precedents has devised major guidelines in Paniben vs State of Gujarat to adhere while recording dying declaration:
- It is neither rule of law or prudence that a dying declaration cannot be acted upon without corroboration. (Munna Raja & Anr vs State of Madhya Pradesh)
- Is the court satisfied that the dying declaration is true and voluntary it can rely upon it for basing conviction on it, without corroboration? (State of Uttar Pradesh vs Ram Sagar Yadav)
- The court shall ensure that the dying declaration is not the result of tutoring, prompting or imagination and is therefore voluntary. The deceased should have had an opportunity to observe and identify the assailants-cum-accused while being in a fit state of condition. (K Ramachandra Reddy vs Public Prosecutor)
- Where the dying declaration is suspicious, no action can be taken upon based on it without corroboration. (Rasheed Beg vs State of Madhya Pradesh)
- The dying declaration made by the deceased/victim while unconscious, is outrightly ought to be rejected. (Kake Singh vs State of Madhya Pradesh)
- A dying declaration suffering from infirmity can’t be a valid basis of conviction. (Ram Monorath vs State of Uttar Pradesh)
- A dying declaration not containing the cause or the circumstances of death, can’t be merely rejected on this ground. (State of Maharashtra vs Krishnamurti Laxmipati Naidu)
- The statements being brief and short isn’t the valid ground of rejection of dying declaration. The brevity and objectivity of the statements guarantees veracity. (Surajdeo Oza vs State of Bihar)
- Normally, the medical opinion certifying the mental fitness to make a statement in regard to dying declaration prevails (Khushal Rao vs State of Bombay), but where the eye-witness says that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion can’t prevail. (Nanahau Ram vs State of Madhya Declaration)
- If there is any deviation or inconsistency between the prosecution’s version and the deceased’s dying declaration, then it nullifies the dying declaration. (State of Uttar Pradesh vs Madan Mohan)
- If there are multiple statements made under dying declaration, the statement first in order must be given preference. Nevertheless, the plurality of statements doesn’t make it less truthful and reliable. (Mohanlal Gangaram Gehani vs State of Maharashtra)
- It is not necessary to mandate (not even stated in Section 32(1), the Indian Evidence Act, 1872) that the dying declaration must be recorded by or in the presence of a magistrate. It is recommended and suitable that the magistrate records it, being learned and abreast with legal requirements. (Kulwant Singh vs State of Punjab)
There is no fixed stance adopted by the Hon’ble Supreme Court, whether the First Information Report (FIR) can be considered as a dying declaration. In some cases, the Hon’ble Supreme Court has held in Munna Raja & Anr vs State of Madhya Pradesh that an FIR could be considered as a dying declaration, while it has taken a contrary view in other cases such as Sukhar vs State of Uttar Pradesh. There is no settled view and no uniformity on this juncture.
The next intriguing question that springs up in one’s mind, ‘what happens if the making of a dying declaration, who is supposed to be “deceased” in further trial proceeding, is not deceased?’. That is to say that he or she survives by medical treatment or good grace of the god. Well then, it is a sheer application of common sense for law enthusiasts to decipher.
- “The Law of Evidence”, Eleventh Edition by Former Chief Justice M Monir.
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