This article has been written by Shweta Singh.

Abstract

The author in this research paper has first tried to introduce the concept of dying declaration and then has explained the provision of dying declaration under the Indian Evidence Act, 1872 in detail. This research paper extensively highlights the main facets of a dying declaration i.e its scope, forms in which it is recorded, its evidentiary value, etc. In the end, the author has tried to explain the importance of a dying declaration for a rape victim through two important case laws viz. Nirbhaya Case and Unnao Rape case. In the end, the author has given her analysis and how lack of consistency ultimately makes a dying declaration very vulnerable to the situation of inadmissibility.

Introduction

A Dying Declaration can be defined as a statement which is basically made by the deceased, stating the cause behind his death or explaining the circumstances which led to the death of the victim. Dying Declaration means the statement made by a person who believes that he is about to die, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death or in reference to the person who inflicted such injuries or of a person who is charged with or suspected of having committed them. Dying Declaration consists of the last words of a person dying or of a person apprehending imminent death.

The term i.e Dying Declaration is based on the legal maxim:

“Nemo Moriturus Praesumitur Mentire”, which means that ‘a man will not meet his maker with a lie in his mouth’. Now, looking at the meaning of the maxim, questions would arise as to why it is believed so. Though, it is extremely difficult, if not impossible to answer this question exactly. The reason behind this belief is somewhat religious, but nothing can be said as such with certainty. It is just a presumption that one fears God and an assumption that at that moment when one’s facing death, one’s mind is induced to speak the truth. 

Truth sits on the lips of dying man was said by Mathew Arnold: 

“It is based on the principle that dying declaration are made in the extremity when the party is at point of death, and every hope of this world has gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”

Section 32(1) of the Indian Evidence Act (hereinafter referred to as IEA), explores the concept of dying declaration. Section 32 of IEA basically deals with the cases related to that person who is dead or cannot be found. IEA lays down the following:

“A dying declaration is a statement 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 the death of that person comes into question.” 

Research objectives

1. To study the various principles and provisions of law regarding the Dying Declaration.
2. To critically analyse the importance of the Dying Declaration in the administration of justice.
3. To examine the evidentiary value of Dying Declarations.

Research methodology

The nature of the research includes an examination of mostly published work like researching through books, online sources, public libraries, published academic journals. 

The proposed research will make use of the following research materials: 

1. Research papers, text books, newspapers and official reports published by universities, library material etc. will be used as primary sources for this paper.
2. The official reports of various committees and commissions, the decisions given in various courts of India and other countries, the statutes and the codes of India as well as the other countries would also be included in the primary resources referred for this research paper. 
3. Research papers and articles uploaded by individuals online, various blogs and debates which are not published, will be used as secondary research materials in this paper.
4. Journals, various manuals, commentaries, parliamentary debates and observations of the court judgements will also be used as secondary sources for the purpose of this paper.

Hypothesis

The Dying Declaration can be the sole basis of conviction.

Dying declaration: an overview

In India, dying declarations are admissible in both civil and criminal matters. The concept of the Dying Declaration was for the first time recognized by the Court of England, back then in the 18th century and after that, it was seen that the concept of Dying Declaration started being adopted by various countries of the world. The concept came into the picture for the first time in an English case named Rex v. Woodcock, wherein the basis of this concept was discussed for the first time. The Court laid down:

“The dying declaration is admitted in the evidence only when this declaration made in extremity, when the declarant is at the point of death and when every hope of this world has gone, when every hopes to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.” It has to be noted that under English Law, the statement of the Dying Declaration is relevant only when the accused has been charged of manslaughter or murder.

The basis of this concept has its root in the theory that, “it is the realization of impending death which operates on the mind of the declarant and such type of declaration considered as hearsay evidence in other cases but in considering the value of dying declaration it was presumed by the court that it would be better to consider this statement in homicide cases.” 

“The general rule laid down is that all the evidence which produced before the court must be direct in nature which means if any evidence refers to a fact which could be seen by the witness who says he himself saw that fact, if any evidence refers to a fact which the witness could be heard then he can say that he heard that fact but if any other fact could be Identify by any other sense then the witness should give evidence in that sense.” 

When we talk about hearsay evidence, it is not a direct kind of evidence wherein the witness is not the principal eye witness because he has heard the facts through secondary sources. Hence, the Dying Declaration is considered to be an exception to the rule of hearsay evidence. Therefore, even though hearsay evidence is not considered as a reliable piece of evidence but in the case of ‘Dying Declaration’, the court does give importance to the hearsay rule of evidence. The Dying Declaration is hence considered to be an exception to hearsay rule of evidence on the principle of necessity as the person whose statement is to be recorded is either dead or is not available and thus no better evidence can be held.

Dying Declaration under the IEA is based upon two important doctrines viz. Doctrine of Necessity and the Doctrine of Presumption. Doctrine of necessity says that it is the person who has sustained injuries and is dead can only be considered as the principle witness of the case, as no one knows the circumstances of his death better than him. Doctrine of presumption is based on the presumption that a person dying will not concoct a story in order to incriminate an innocent person. 

Essential ingredients for a dying declaration to be admissible

The following are the essential requirements for a Dying Declaration to be admissible:

1. There should be a statement made oral/written by a person who is dead. This statement made by a person who is dead must be:
   1. As to the cause of his death.
   2. As to the circumstances of the transaction which resulted in his death.
   3. It is not necessary that a person making a statement must be under expectation of death; what matters is that the person making the statement must eventually die.
   4. Such a statement can be made in any proceeding (whether civil or criminal) in which the cause of that person’s death must be in question. 

Evidentiary value of dying declaration

Test of reliability of dying declaration

In the case of Ram Nath v. State of M.P, it was observed by Mr. Justice Mahajan that it is an established principle of law that an accused cannot be convicted solely on the basis of dying declaration and without any further corroboration. But the Apex Court of India, in Kushal Rao v. State of Bombay, overruled the decision passed in the case of Ram Nath and laid down the certain test of reliability for the admissibility of the dying declaration. 

They are as follows:

1. There is absolutely no rule of law which says that a Dying Declaration cannot be the sole basis of conviction unless it is corroborated.
2. Each case must be decided by the Court according to the facts and circumstances in which the declarant made the dying declaration.
3. That Dying Declaration is not a weak piece of evidence.
4. A dying declaration stands on the same position as any another piece of evidence & has to be adjudicated in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.
5. The Dying Declaration must be recorded by an authority competent to record the same i.e the Magistrate.
6. The Court is required to be satisfied that there was absolutely no element of tutoring, the declarant was in a fit state of mind and the statement made was not a result of his imagination. 
7. The statement made by the declarant must be consistent at the time while he is making the statement as well as should stand the same even after making of the statement.

Therefore, through this case of Kushal Rao v. the State of Bombay, the Court held that while considering the admissibility of dying declaration, the Court has to record the dying declaration without any further corroboration. But it has to be kept in mind in cases where the statement made by the declarant suffers from any infirmity, then, in that case, Dying Declaration cannot be the sole basis of conviction and will have to be further corroborated. 

Evidentiary value of dying declaration recorded by the following

It has to be kept in mind that the Dying Declaration can be recorded by any person. It may be by police, magistrate, doctor etc. Dying Declaration can also be recorded by the family members of the deceased person and is also considered to be admissible. In the case of Arvind Singh v. the State of Bihar, the declarant had made a statement to the mother, but due to various infirmities, the Apex Court refused to rely on such a dying declaration. 

It is a settled principle of law that the recording of a dying declaration by a competent magistrate gives so much reliance on the dying declaration and gives high weightage to the statement as well as enhance the evidentiary value of the statement. The only reason that so much weightage is given to a statement recorded by a Magistrate is that he is considered to be an impartial person and a responsible authority who will not fabricate the statement given by the declarant. It can also be recorded by a police officer but in this case, it is on the prosecution to satisfy the Court why the dying declaration was not recorded by the Judicial Magistrate. The statement can also be recorded by a Doctor of his patient who is dying at that time and when he is not in the condition to avail the service of Magistrate or the Police Office for recording the dying declaration.

Different forms and methods of recording the dying declaration

Oral declaration

The oral dying declaration is basically given by “words” and can be taken into consideration as a valid piece of evidence and is an exception to the hearsay rule under the IEA. The only requirement here is that the oral dying declaration must be reliable and not faulty and should be examined in its strict sense in order to form the basis of conviction. 

Written declaration

A written declaration is when a statement is given by the declarant in a document form. Written dying declarations are seen very less because the declarant is in such a critical condition that writing a statement is not possible and therefore these days the courts have not only allowed oral dying declaration but have also taken into consideration the sign or gestures made by the declarant. 

A statement made by sign and gesture or in any other manner

In the case of Queen Empress v. Abdullah, it was held that a statement made by the declarant by sign and gestures are also admissible in the court of law. In this case, the Court observed that,“throat of the girl was cut by the accused person and sue to this injury, the girl was unable to speak regarding the name of an accused person but the girl signed the name of the accused person so that the court can identify the accused and thus in this case the court laid down that the sign made by the deceased girl would be considered as her dying declaration and also some evidentiary value in the eye of law.

Can a dying declaration be the sole basis of conviction? 

There’s a heavy debate around this topic and the answer is yes, a dying declaration can form a sole basis of conviction. But, again this differs from case to case. In cases, where a Dying Declaration passed the scrutiny test, then yes it can become the sole basis of conviction. Further, the paper will also discuss the Dying Declaration in relation to rape victims with the help of case laws, then one can have a proper understanding as to when a dying declaration can become the sole basis of conviction and when not. 

While analyzing the credibility and reliability of a dying declaration, it is very important to see to it that the declarant was under absolutely no force while making the statement and was in a fit mental state. In some cases, depending upon the circumstances of each case, the dying declaration would require corroboration with other evidence in order to come to a conclusion. Therefore, there are certain conditions, if satisfied, then a Dying Declaration can solely form a basis of conviction. 

Dying declarations and rape victims

Now, that we have got in-depth knowledge about the Dying Declaration, the author of this paper would like to shift the attention to the importance of the Dying Declaration for a rape victim. When talking about rape, it is considered to be one of the most common offences against women in India. If one looks at the rape statistics in India, they are extremely shocking. The statistics show that there are women raped in India every 15 minutes and it is even more surprising that only 1% of these are actually reported. Though there are provisions of the law in India that deal with the penalization of this offence, they haven’t added much to the reduction in the number of rapes in India. 

Talking about the role of the Dying Declaration in rape cases, they play a huge role. The statement can be made orally, written or even in gestures by the rape victim and if this statement passes the test of scrutiny, this dying declaration given by her can be the sole basis of conviction of the accused. This statement was given by the rape victim, usually is required to be made in the presence of a Magistrate, but if a victim is admitted in the hospital and is in a critical condition, the Doctor can also record the victim’s dying declaration and need not wait for the Magistrate.

This piece of evidence recorded by the doctor is considered to be admissible in a court of law. Now, the author of this paper would like to throw light on few important case laws in order to have a better understanding of the same. These case laws will highlight the importance of a Dying declaration for a rape victim and how they have been admissible in the court of law.

Nirbhaya case 

Every person in India is aware of the horrendous crime that took place in Delhi. A girl was brutally raped while she was travelling with her friend by six people. Not only that but her intestines were ripped out of her body and there were some serious injuries. In this case, when we talk about the Dying Declaration, dying declarations were corroborated in material particulars with the help of medical evidence, matching of DNA profiles which were generated from blood-stained clothes of the accused, iron rod recovered, etc. In this case, the rape victim had given three dying declarations. 

The first declaration was given by her to a doctor in the hospital, the second declaration to a sub-divisional magistrate and the last was recorded by a metropolitan magistrate which was given by the victim mainly through gestures. 

The Apex Court of India considered all the dying declarations and found that they all were consistent with each other. These dying declarations were not only consistent with one another but also satisfied the test of probabilities and were true and voluntary. The Court also went out to clarify that a dying declaration need not only be in words or in writing, it can also be made by a gesture or by a nod, what is necessary is that proper care should be taken at the time of recording such statements which are made by gestures. 

Therefore, when there are multiple dying declarations, it is to be noted that each declaration has to be separately assessed and examined. After proper evaluation of the dying declaration, its evidentiary value has to be assessed and at the end all the dying declarations have to be studied and examined together in order to understand their connection with each other. So, in the end, what we understand from this case is that the Dying Declaration carry so much weight that the accused here has no power of cross-examination here. Once, the court is satisfied that the declaration is true and the declarant was in a proper state of mind while giving the same, it can base its conviction without any further corroboration. But there may be cases where the dying declarations may be corroborated in order to strengthen the prosecution’s case. 

Unnao rape case

In this case in the year 2017, a minor in Unnao district of UP was raped brutally by BJP MLA Kuldeep Sengar, his brother and accomplices. The police didn’t even let the family of the victim file an F.I.R. Then, after the incident one day, the victim in front of the Chief Minister of UP Yogi Adityanath, attempted to immolate herself. Then, the case came into light and the investigation began. In 2019, the victim’s family was hit by a truck and caused the death of her two aunts and the victim and her lawyer were in critical condition. Then, the case came to light and the investigation began. The accused was sentenced to life imprisonment. 

The dying declaration was given by the victim and was recorded by a sub-divisional magistrate in the hospital. This was considered to be strong evidence against the five accused who had raped and then burnt her ablaze. Therefore, the importance of dying declaration can be realized in such cases and how these statements can form a big part of the judgement given by the Court. 

Analysis and conclusion

The author of this paper is of the opinion that the legal position of Dying Declarations and its admissibility has evolved through various judgements passed by the courts. It cannot be denied that a dying declaration is considered to be a very important piece of evidence and can be very much the sole basis for the conviction of an accused. The only essential requirement here is that the statement given by the declarant must be voluntary and the statement has to be made in a fit medical condition. If this requirement is fulfilled, the dying declaration can be relied upon without any further corroboration. 

Lastly, the author in this research paper tried explaining the importance of a Dying Declaration in a rape case and covered one of the two most important cases in India that showed us how much weight a dying declaration can carry in such cases. The author firmly believes that the value of dying declaration in offences of such high degree violence is very important as it helps the court to reach a decision and eventually in the conviction of the accused. 

Also, the current trend is that courts are taking into consideration a dying declaration without any further corroboration and making it the sole basis of conviction. The author is of the opinion that the court should take into account corroboration also in order to see that no prejudice would be caused to the accused. So, it is high time that courts construct specific and rigid parameters so that the statement cannot be misused. The most important thing that needs to be considered while admitting or refusing a dying declaration, is to make sure that there’s a balance very well maintained between the rights of the accused and the justice of the deceased.

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