This article is written by Khushi Agrawal, 1st-year student, Symbiosis Law School, Noida. She has discussed the concepts of dying declaration in detail.

Introduction

A Dying Declaration is a statement made by a declarant as to the cause of his death or who died explaining the cause of his death. If the person making the dying statement is likely to live, his statement is inadmissible as a dying statement, but if examined, it could be relied on under Section 158 of the Indian Evidence Act, 1872 to corroborate his testimony. It is dealt under Clause (1) of Section 32 of the Indian Evidence Act 1872.

Illustration

X was raped and received injuries due to it. X dies of injuries received. The question is whether Y raped or killed X. Under such circumstances, a suit will lie against Y by the family of X. Relevant facts are in X’s statement about her death, the murder and the rape, and the wrong to be acted upon.

Who is dead?

Where a witness who is alive is not produced, the previous statement by him in the previous proceeding cannot be admissible in evidence as happened in Raj Bali v Deputy Director[1]. A dying declaration is admissible in evidence if the declarant dies. If the declarant survives it is not admissible in evidence.

What happens if the declarant survives?

The question arises when the declaration of dying is recorded and the declarant does not die. The statement is converted into a dying statement only when the victim/declarant dies. If the declarant does not die, the declarant can be used against the accused as a witness in court. It is said that the dying statement is only recorded on the presumption that the declarant is about to die. But if the declarant does not die then the statement cannot be admissible as a dying statement.

What is the difference between English and Indian Law?

English Law	Indian Law
It is admissible only on a criminal charge of homicide or manslaughter.	It is admissible in all proceedings, civil or criminal.
The declarant should have been in real danger of death for his admissibility at the time they were made, and that he should have had full apprehension of this danger and the death should have followed.	The dying statement is relevant whether the person making it was or was not under the expectation of death at the time of the declaration.

Who can record the dying statements?

• The best form of declaration of dying would be the one recorded by the Magistrate.
• However, according to the Supreme Court’s guidelines, anyone can record the dying statement.
• A dying statement can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burned or injured and wants to make a statement, the doctor can also record the same statement and take note of that statement. A person with 100 per cent burns can make a statement, and a doctor’s certificate is not a precedent for relying on a dying statement.
• It can also be made for a relative or family member and in the eyes of the law, the same plays an admissible role.
• Courts discourage police officers from recording the dying statement, but if there is no other person to record it, the courts also consider the dying statements written by police officers.
• If the statements are not recorded by the magistrate then, in that case, to make them admissible, it is better to take the signatures of the witnesses present at the time of recording the dying statement. It is important that he must be in a sound state of mind when the declarant gives the statement.

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What is the relevance of a Dying Declaration?

A declaration made by a person who has died pertinent only to the statement concerning the cause of the death of that person or any transaction circumstance that led to the death of that person is questioned.

If the deceased is not proved to have died as a result of injuries received by him in the accident in which the deceased is alleged to have been killed, his statement relating to that incident cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction that resulted in his death. In a case where the cause of the death of that person is called into question, a dying statement becomes relevant.

Which type of dying declaration is not admissible?

An omnibus statement made by a group of persons including deceased to the witness cannot be accepted as a piece of dying declaration. The statement of the deceased containing a reference to the motive of the accused is not admissible. The potion of the dying declaration made by one deceased person as to the cause of death of another deceased person is outside the scope of Section 32(1) and consequently inadmissible in evidence.

What are the grounds of admitting dying declaration?

The main reasons for admitting the dying statement are:

• The death of the declarant.
• The victim, who is the only eyewitness of the crime, would tend to defeat the extremes of justice by excluding his statement, and
• An imminent sense of death, which creates a punishment equal to the obligation of an oath.

The principle upon which death statements are accepted is that they are statements made under extreme conditions.

What are the methods to prove a dying declaration?

1. Statements relating to the declaration of death, whether oral or written, must be duly proved.
2. If the declaration is oral, the person who heard the declaration should record what was heard in writing.
3. If the declaration is written, evidence from the person who recorded the declaration must be proved.
4. If a judge makes the death declaration beforehand, the judge must be called to prove it. In the case of a death statement made to a magistrate, Article 80 of the Indian Evidence Act of 1872 does not apply.
5. A dying declaration must be corroborated by other necessary document or evidence.

Can conviction be solely based on dying declaration?

In Ramnath v State[2], the Supreme Court observed that the conviction of an accused is not safe without further corroboration solely on the evidence provided in the dying statement, as such a statement is not subjected to oath and cross-examination, and as the person making such a declaration may be physically as well as mentally confused at that time and may draw upon his imagination while making the statement.

However, In this case, those observations of their Lordships were found to be ‘ obiter dicta ‘ by nature and the following guidelines are laid down in Khushal Rao c. Bombay[3].

1. A dying declaration can not constitute the sole basis for conviction as an absolute rule of law unless this is confirmed.
2. It has to be established on its own facts, taking into consideration the circumstances of the death declaration.
3. As a general proposition, it can not be stated that a dying statement is a weaker kind of evidence than other evidence
4. The dying statement shall be based on the same basis as other evidence and shall be judged on the basis of the circumstances surrounding it and the principles governing the assessment of the evidence.
5. A dying statement written by a competent judge, that is in the proper manner, in the questions and answers form, as far as possible, according to the declarant’s maker, is much more relevant than the dying statement, which may be affected by all the infirmities of the human memory and character, depending on oral witness
6. In order to test the reliability of a dying statement, the court must consider several circumstances, such as the dying man’s opportunity for observation, etc. Therefore, in order to pass the reliability test, a dying statement must be subjected to very close scrutiny, bearing in mind that the statement was in the absence of the accused, who had no opportunity to test the veracity of the statement by cross-examination. But once the court has concluded that the dying statement was the truthful version of the victim’s death circumstances and assailants, there is no further question of further corroboration. On the other hand, after examining the death statement in all its aspects and testing its veracity, the Court has concluded itself that it is not reliable by itself and that it suffers from infirmities, then it can not form the basis without corroboration of a conviction. The need for corroboration is not the inherent weakness of a death statement as evidence, but the fact that the court concluded, in a particular case, that a dying statement was not free of the above-noted infirmities or other infirmities that could be disclosed in evidence in this case.

When does dying declaration not require further corroboration?

Once the court has concluded that the dying statement was the true version of the death circumstances and the victim’s assailants, there is no question of further corroboration: Khushal Rao v State of Bombay.

When there are more than one dying declarations?

In the case of two conflicting death statements, one recorded by a doctor in the presence of two or more doctors and the other recorded by a person certified by Sarpanch, the second not proven by a competent witness cannot be relied on; Harbans Lal v State of Haryana.[4]

Where more than one death declaration is present and inconsistent, it is not possible to select one such declaration, in which the accused participates and the conviction is based on that death declaration alone.; Kamla v State of Punjab.[5]

What is the difference between a dying declaration and a dying deposition?

Dying Declaration	Dying Deposition
It is a statement made by a deceased person to anybody who happens to be present when it is made.	It has to be made before a Magistrate and in the presence of the accused.
It is not made on oath.	It must be made on oath and before a person authorised by law to take evidence.
It is subject to cross-examination.	It is subject to cross-examination.
It is weaker than dying deposition.	It is stronger than a dying declaration.

 

Landmark Cases

• In the case of Uka Ram v State of Rajasthan[6], the Court held that, in the event that the cause of his action is questionable, a person’s statement of the cause of his death or of any circumstances of transaction that led to his death is admissible as evidence, the statement in law is categorically called the dying declaration.
• In Chirra Shivraj v State of Andhra Pradesh[7], the Court held that relying on the dying declaration is an extremely dangerous mechanical approach simply because it is there. The court shall examine the death declaration scrumptiously with a microscopic eye, to find out if it is voluntary, genuine, made in the conscious state of mind and without being influenced, and if such condition is fulfilled, the court held that the order of a conviction cannot be declared on the basis of sale of the dying declaration.
• In Sudhakar v State of Madhya Pradesh[8], the Apex Court held that the court should ensure that the declaration is not a tutoring or encouraging statement or an imagination product. The court has to find out from the proof recorded that the deceased had a fit state of mind and a good chance to see and identify the perpetrator. The court normally relies on the medical evidence for concluding whether the dying person is in a fit state of mind, but if the person who records the statement states that the deceased is fit and conscious, the medical opinion is not dominant and it can neither be said that because a doctor does not have a certificate of fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the death statement must be convinced of the fitness of the deceased. If the Magistrate’s testimony shows that the declarant was fit to make the statements without the doctor’s opinion, action can be taken if ultimately, the Court considers it voluntary and true.
• In Uttar Pradesh v Madan Mohan[9], the court stated that it was for the court to see that the dying statement inspired complete confidence since the manufacturer of the dying statement was not available for cross-examination, the court should be satisfied that there was no possibility of tutoring or prompting, the doctor’s certificate should state that the victim was in a fit state of mind, Magistrate recording his own satisfaction with the declarant’s fit mental condition was not acceptable especially if the doctor was unavailable, the Magistrate, police officer and executive should record the dying statement only if the deceased’s condition was so precarious that no other option left.
• In Kusa v. State of Orissa[10], the Supreme Court held that a death declaration would be unreliable if a deceased fails to complete the main sentence. But if he tells the whole story without replying to the last formal question as to what he wanted to say more, the statement could be relied on.

Conclusion

After seeing the various opinions of the court, it is clear that certain guidelines must be followed when recording the declaration of death. The court has the power to reject the dying declaration on the grounds of the validity of the records by considering it as an unreliable source of evidence. It is clear from the above-mentioned cases that the dying declaration may be in form, but it must be carefully and duly proven that the courts make it admissible as the’ Dying Declaration.

Endnotes

1. AIR 1972 All 291
2. 1953 S.C. 420
3. AIR 1958 S.C.22
4. AIR 1993 SC 819
5. AIR 1993 SC 374
6. [2001] 5 SCC 254
7. [2010] 14 SCC 444
8. [2012] 7 SCC 569
9. AIR 1989 SC 1519
10. [1980] 2 SCC 207