dying declaration
Image source - https://bit.ly/3lKz1a3

This article is written by Parul.

Abstract

In our justice delivery system, judges play a great role. It’s heavily upon them to ascertain whether the facts are true or false. Obviously, it will be proved through evidence and many other means.

Sometimes a situation occurs in which the person dies, giving his statement. 

So, are you aware of this provision?

So this is basically a statement by a person before his death. Which , if I explain in simple words is called a dying declaration. 

So, in this article I will be discussing the provisions related to Dying declaration, is it truth worthy form of evidence, is it admissible? And many other questions.

Introduction

Truth is considered the backbone of our judiciary system. There is a saying that ‘ Though hundred guilty be acquitted, but one innocent person should not be convicted!” In India, it is very difficult to get justice. Evidence is the only key or proof through which we can reach to the truth. The job of the jury is to find the truth which is actually hidden besides these evidence.

Evidence is paramount

Though different countries have different justice delivery systems. But what remains important to all of them is the evidence. 

Limitations imposed by court of law

Evidence should be given only of relevant facts.

  1. The only best evidence of the case must be given. 
  2. Hearsay evidence must be excluded.

It means that one should give evidence only of the relevant facts. There are many facts of a case. But while in a court, we should give evidence of that relevant fact through which we can denote some type of connectivity.

Hearsay evidence doesn’t have any type of value. Hearsay evidence is basically not accepted in court due to the fact that it is being given by a person and in a form of experience  of another person , not his experience!

And that is why it can’t be cross verified.

Dying declaration

Dying declaration in the simplest sense means words or any type of statement said before the time of death. These statements are considered relevant whether the person giving them was aware of his death or not.

Sometimes, when there are no witnesses present, then the dying declaration is considered the best evidence.

Dying declaration is basically an exception to the hearsay evidence. A hearsay evidence is not a trustworthy evidence. It is not recognised and admissible in our courts.

Leterm Morte:

This word is equivalent to the term dying declaration.

Maxim: ‘Nemo moriturus praesumitur mentire”:

This maxim states that a man while dying will not speak a lie. This maxim is the basis of the dying declaration concept.  A dying declaration is considered a trustworthy and reliable document. This is believed that a person while dying will not meet his maker with a lie.

The only requirement which is to be made in case of dying declaration is that the person giving the statement must be competent enough. He must be competent to give the statement. If he is not competent enough, then his statement will not be admissible. 

Fundamental requirements of a dying declaration

The declarant should not be available.

  • And if the person who has given the dying declaration has any slight chances of getting recovered, then the dying declaration will not be admissible. That’s the basic fundamental rule of dying declaration.

Section 32 (1) of the Indian Evidence Act

Under section 32 and clause 1 of the Indian evidence act it is being mentioned that when a person makes any statement regarding the cause of his death or any type of circumstance then it will be considered relevant. Section 32 of the Indian Evidence act comes into operation only when the person is either dead or is not in a position to give evidence. 

Admissibility of Dying declaration:

Admissibility of dying declaration is mentioned under Section 32 clause 1 of the Indian Evidence act.

Various forms of giving dying declaration

  • It can be in written form.
  • It can be in oral form too.
  • It can be in the form of gestures and signs.
  • It can be in the form of a thumb impression.
  • It can be in the form of questions and answers.

Is there any Format of Dying declaration:

There is no such format of dying declaration. As stated above there are various forms of giving dying declarations.

Case Law: Queen v Abdulla:

In this case it was held that if any person is injured to such extent that he can’t even speak then his dying declaration can be recorded through his signs and gestures.

Is there any procedure for the recording of the Dying declaration?

No, there is no such procedure. The statement can be recorded by any person. It can be a doctor, it can be a normal person or a police officer or any judge.

Is there any provision regarding who can record the Statement of dying declaration?

There is nothing in particular. Anyone can record the statement. But the best form of recording of a statement is considered to be by the Magistrate. But according to the guidelines of the Supreme court, any person can record the statement.

Generally courts do not consider the statement recorded by police officers. But in some situations if there is no one, then the statement even recorded by the police officer is considered.

Dying declaration recorded by Doctor:

If the situation is something like that the victim is in danger or the police can not come. Then the doctor should record the statement and his recording of the statement will be equally applicable.

What is the main thing needed for Dying declaration?

The main thing which is needed for Dying declaration is the ‘fit state of mind of the deceased’. The person giving the dying declaration must be fit. He must be capable enough to know what is happening around him!

Governing principles related to dying declaration

  1. Court has to satisfy itself that it is solely true and when it is satisfied and when it is satisfied that the given dying declaration is true then the court can base it’s conviction on that.
  2. Where it appears to the court that the dying declaration is suspicious so the court should not act upon it.
  3. A dying declaration should not be rejected only on the basis that it does not contain any details of the occurrence. 

Facts about Dying declaration:

  • It is credible.
  • It is trustworthy.

Case law: P.V Radhakrishna v. State of Karnataka AIR 2003:

In this case, the Apex court relied on the principle on which dying declaration is based. And the principle is ‘Nemo moriturus  praesumitur mentire’.  It is a Latin maxim which means that a person will not meet with his maker of death which lies in his mouth.

Case law: Surajdeo Ojha & Ors. V. State of Bihar: 

This case discusses the brief statement. It was held that if there is a brief statement recorded, then it can not be denied only on this point that it is brief!. And on the contrary it was said that If any statement is short, it itself guarantees truthfulness. 

Exceptions of Dying declaration

There are some exceptions to the dying declaration as well. In these exceptions, the statement given by a person will not be considered admissible in the court of law.

  • When the person is not a competent witness:

It means that the person giving the declaration must be competent enough. A dying declaration given by a child will not be admissible in the court. 

Case law: Amar Singh v state of MP:

In this case, it was said that the dying declaration will not be considered reliable without the proof of mental fitness.

  • Uninfluenced dying declaration:

The dying declaration should not be done under the influence of anyone. It should not be done under anyone’s pressure. And if any dying declaration is given under the influence of any person then it will not be admissible in the eyes of law.

  •  Contradictory statement:

If any person has given more than one dying declaration, and they appear to be contradictory to each other. So it will lose its value.

Duty of the court:

  • It’s the duty of the court to check that there was no possibility of undue influence.

Nirbhaya rape case:

In Nirbhaya rape case, dying declaration was given in the form of signs and gestures. In this case, Nirbhaya gave her first dying declaration on the night of December 16,2012.  This statement was recorded in front of a doctor and this was her first declaration.

Dying declaration by Rape victims

State of Assam v Mahim Barkataki:

In this case, the rape victim had made a statement. And when she was giving this statement, she was full of burn injuries. So in her dying declaration she had alleged that she was being raped by the accused and after that kerosene was being put on her. The court found this dying declaration reliable and a trustworthy source of evidence. So in this case conviction was solely based on the dying declaration.

Language of the Statement:

There is nothing regarding the language of the statement made. Dying declarations can be made in any language. Court can’t deny the statement on the fact that it is being given in this language or other.  Dying declaration can be in any language.

Najjam Faraghi in alias Nijam Faruqui v. State of West Bengal 1996 CriLJ866:

In fact, it was being held that a dying declaration given by a person in his own language will actually increase the value of the evidence.

FIR as Dying declaration

Can an FIR be treated as a dying declaration?

Yes! The answer to this question is obviously yes. It was stated in one of the cases.

Case law: K Ramachand reddy v Public Prosecutor:

In this case a situation emerged that when a person filed an FIR. He died simultaneously. In this case the FIR was considered as a dying declaration.

Case law: Biju Joseph v State of Kerala:

In this case it was said that statement can be recorded in any language. And if the statement of the deceased was made in her own language, then it will not reduce its value.

Conclusion

The trust the court and judges had on the dying declaration is because of this fact that a dying man will never lie. The concept of dying declaration is evolving day by day and it’s cogency has been proved in many landmark judgments.


LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY