This article is written by Arijit Dey, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho, as a part of his coursework. He is a 1st Year student, LLB, Campus Law Centre, Delhi University.
Being a very important part of the Indian Evidence Act 1872, Dying Declaration holds a very big weightage in the cases where the facts and the circumstances of the case are not holding up very well. In cases, it becomes a very important part on behalf of the prosecution.
It is based on the principle LETERM MORTEM which means, Words said before death, and in the legal term it is known as Dying Declaration.
Suppose an Incident has occurred, then the question which often arises in the mind of a layman is, who the best witness of the act? The 2 people that at first come to our mind is the accused ( who has committed the crime) and the victim (who was at the receiving end of the crime), but there is a catch over here too, and that is, both the statements of the accused and the victim as an evidence is not taken into consideration as it is a very common human nature that the accused will talk on his favour and the victim will talk on his favour leading to a very haywire situation and leaving the court unable to go to any conclusion and to resolve that situation a 3rd person is called into play who is known as the witness.
A Dying Declaration is generally used by the prosecution, but can also be used on behalf of the accused.
What if the crime takes place at a place where there is no one present anywhere near?
Some crimes are such that we don’t have any strong evidence against the accused to put him behind bars and the statement of the deceased that is, the dying declaration is such a device which is there with us as the only evidence.
Dying declaration is considered to be a trustworthy piece of evidence as it is based upon the general belief that most people who know that they are about to die, do not lie or in simple words, it is said that no one would die with a lie. It is based on the principle “Nemo morituruspraesumiturmentire” which means, a man will not his maker with a lie in his mouth.
Forms of Dying Declaration
There is no fixed form of Dying Declaration that is admissible by the court provided that it must be functioning as a piece of evidence with proper identification. It is also not necessary to be a neatly structured one. In fact, a neatly structured declaration can also create suspicion in the mind of the court. Hence a declaration should be such, that the declarant is able to recollect the events as to result in his present state of affairs.
Question and Answers Form
As discussed above, Dying Declaration may be in oral or in writing. Any mode of communication is suitable for Dying Declaration but still the question and answers form is considered to be the most preferred form of recording a Dying Declaration and it is considered to be even better if it is in the form of narration as nothing is being prompted and everything is coming at the very moment from the mind of the person making it, but it must be noted that whenever it is being recorded in the form of questions and answers, it is reduced in writing and it is preferred to be written in a language which the patient understands and speaks. It has been put forward by the court that, a statement recorded in the form of a narrative is said to be more natural as it might give the version of the incident as perceived by the victim.
Signs and Gestures Form
Where the Dying Declaration was not recorded in Question and Answers form it was held that it could not be discarded for that reason alone.
It was held by the Apex court that, if the victim is unable to speak or write then he can make gestures of any sort, for example, nodding of his/her head, then even such kind of declaration will be considered to be valid and admissible. It was held in Nirbhaya case 2013 by a bench of 3 judges consisting of Justice Deepak Mishra, Justice R Banumathi and Justice Ashok Bhushan that it is not necessary for Dying Declaration to be in the form of questions and answers, but even gestures can be made admissible in court.
It was held by the full bench of Allahabad High court in the case of Queen-Empress vs Abdullah that “ If the injured person is unable to speak, he can make a dying declaration by signs and gestures in response to the question.”
Procedure of Recording Dying Declaration
There is no particular procedure for the recording of a Dying Declaration and it’s not strictly required to be recorded only by a magistrate. A Dying Declaration can be recorded by a doctor, magistrate, police officer or any other person but it’s just that, when a Dying Declaration is recorded by a competent magistrate, it is said to have more strength and reliability and thus would stand on a higher foot.
Fit State of Mind of the Declarant
It is important that the declarant was in a fit state of mind and was capable of making the statement at the time when it was being recorded. The mental condition of the declarant, his alertness, memory, and understanding of what all he is saying is usually looked upon and it is advisable for a Judicial magistrate to obtain a certificate from a trained medical practitioner.
In case of unavailability of a doctor, the person recording the statement can do any such thing to satisfy the above-mentioned factors before recording the statement. For eg. He should ask the declarant whether he is capable of making a declaration, He should ask simple questions at first to draw out answers from the declarant to know his state of mind etc. Hence the requirement of a medical certificate by a competent doctor is not necessary in every case.
Therefore the person recording a Dying Declaration should be satisfied that the declarant is in a fair state of mind and is capable of making such a statement.
Language of the Statement
It has been seen that there is no language as such that has been prescribed for recording the statement of the declarant but it is still advisable that the statement should be recorded in the language of the declarant or the language of the court.
There is often an issue which arises where the deceased is giving the Dying Declaration but before completing the statement the declarant dies. When what will be the worthiness of such statement?
Regarding this, the apex court held that, If the deceased fails to complete the main statement then in that case a dying declaration will be unreliable, but, if the deceased has narrated the entire story but has failed to answer the last part say for example what more he wanted to say, then, in that case, the dying declaration then, in that case, can be relied upon.
Statement made to Relatives
The apex court held in the case of Barati vs State of U.P that, the dying declaration made to the relatives of the deceased can also be trusted when it has been properly proved. In this case the deceased was killed after acid was thrown on his face. He informed his brother and son in the beginning, then repeated the same thing at the police station and again at the hospital thus charging the accused. The statement was held to be worthy but it was added by the apex court in the latter cases that such statements cannot be rejected but should be clearly scrutinized.
Whether FIR can be Considered as Dying Declaration
Where an injured person lodged an FIR and then died, it was held to be relevant as a Dying Declaration by the Hon’ble Supreme Court of India, but where the patient remained admitted in the hospital for the adequate number of days, FIR was treated as dying declaration.
Will it be a Dying Declaration if the Declarant survives?
Death is a must for a Dying Declaration to be admissible. Death need not occur immediately but death must occur. If the declarant survives then the statement will be inadmissible as dying declaration but it can be relied upon as a witness in the court against the accused.
In Ramprasad vs the State of Maharashtra it was observed by the supreme court that, while making the statement, the declarant should have been under the expectation of death and if a person making dying declaration survives, then his statement cannot be used under section 32 of the Indian Evidence Act but it is statement in terms of section 164 of CrPC.
Also if the person making the statement is imbecile or a minor, the declaration will be inadmissible.
Multiple Dying Declaration
Where there were two dying declarations and there was an inconsistency between them plus there was no other evidence to support the prosecution claim,it was held that it’s not safe to convict the accused person solely on the basis of the declaration.
But where there were two statements recorded, one before the police and the other one before the magistrate, the two being similar in material facts, it was accepted as an evidence though there were some minor discrepancies.
Dying Declaration is a very important piece of evidence as it may be the last and most pertinent piece of evidence about the commission of the offense and it should be recorded very carefully keeping in mind what could possibly go wrong if in case of any error on the part of the court. Conviction can be solely based on it without any corroboration if it is true and voluntary and has the full confidence of the court. If dying declaration is suspicious or incomplete or differs from prosecution’s version then it cannot be acted upon
Certificate of the doctor should be obtained mentioning the fit state of mind of the declarant and the court should satisfy itself that there was no possibility of tutoring the declarant.
It is the duty of the court to satisfy itself of the truthfulness before it can proceed to convict the accused.
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