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Dying Declaration

BY y.srinu.judge@gmail.com December 8, 2010

 DYING DECLARATION

     ” A person , who is about to die , would not lie”.

  ” Truth sits on the lips of a person who is about to die”

INTRODUCTION:

The maxim “Nemo moriturus praesumitur mentire” is basis for ”dying declaration”, which means  ” a man will not meet his maker with a lie in his mouth”. A dying declaration is called as ” Leterm Mortem”. The word ‘‘ Leterm Mortem” means ‘‘ Words said before death’‘. Recording of dying declaration is very important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration  is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value.

Section 32 (1) of Indian Evidence Act.

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known  when the statement is made by a person with regard to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.  Such statements are relevant irrespective of the person who made such declaration was expecting death or not . Thus, it is apt to say that admissibility of Dying declaration  is explained in the section 32 (1) of Indian Evidence Act.

How a dying declaration should be?

There  is no particular form of dying declaration. However,  the best form of dying declaration is in the form of questions and answers.  However, whenever a dying declaration  is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. See.Landmark ruling of Supreme Court in Laxman vs State Of Maharashtra, Appeal (crl.) 608 of 2001 Dated. 27 February, 2002. Bench: G.B. Pattanaik, M.B. Shah, Doraiswamy Raju, S.N. Variava, D.M. Dharmadhikari. 2002 Cri L J 4095, (2002) 6 SCC 710.

A dying declaration may be in the following forms:

  1. Written form;
  2. Verbal form;
  3. Gestures and Signs form. In the case ”Queen vs Abdulla[1]”, it was held that if the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.
  4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid.
  5. It is preferred that it should be written in the vernacular which the patient understands and speaks.
  6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations,  nothing is being prompted and every thing is coming as such from the mind of the person making it.

OBJECTS;

  1. The presumption is ” a person who is about to die would not lie”.
  2. It is also said that ” Truth sits on the lips of a person who is about to die”.
  3. The victim is exclusive eye witness and hence such evidence should not be excluded.

 Who may record a dying declaration ?

  1. It is best that it is recorded by the magistrate .
  2. If there is no time to call the magistrate, keeping in view the deteriorating condition of the declarant, it can be recorded by anybody e.g. public servant like doctor or any other person.
  3. It cannot be said that a dying declaration recorded by a police officer is always invalid.
  4. If any dying declaration is not recorded by the competent Magistrate, it is better that signatures of the witnesses are taken who are present at the time of recording it.

Important facts to be remembered before recording Dying Declaration:

  1. The declarant was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind until the recording of dying declaration is completed.
  2. The fact of fit condition of mind of declarant can be best certified by the doctor .
  3. Yet,   in case of where it was not possible to take fitness  from the doctor, dying declaration has retained its full sanctity if there are other witnesses to testify that declarant was in fit condition of the mind which did not prevent him from making dying declaration.
  4. However, it should not be under the influence of any body or prepared by prompting, tutoring or imagination. If any dying declaration  becomes suspicious,  it will need corroboration.
  5. If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are inconsistency or contradictory,  such dying declarations  lose their value.

Now it is very essential to know the conditions for admissibility and evidentiary value of a dying declaration. The table given infra succinctly explains the same:

CONDITIONS FOR ADMISSIBILITY          EVIDENTIARY VALUE
 
  1. The declarant ,who gave dying declaration, should have died.

2.       Admissibility of dying declaration is explained in the section 32 (1) of Indian Evidence Act.

3.       When the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made this was expecting death or not. (See section 32 (1) of Indian Evidence Act).

  1. The dying declaration must be complete [2].
  2. The cause of death must be explained by the declarant or atleast the circumstances which resulted his/her death must be explained.
  3. The declarant, who makes dying declaration, must be conscious and coherent.
  4. The declarant must be sound state in mind.
  5. The cause of death of declarant must be in question.
  6. However, the declarant need not be under expectation of death unlike English Law.
  7. The declarant need not be under shadow of death.[3]
  8. The dying declaration may be in verbal form.
  9.  The whole dying declaration must be taken into consideration by the Court but not some portion of it.

13.   The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed[4].

14.    Corroboration to dying declaration not necessary. (1990 Crl.L.J 1129)

15.   Exact words of deceased in dying declaration need not be stated. (1990 Crl.L.J 2720)

16.   It is immaterial that the person put a thumb impression or signed a dyin declaration if the declaration is duly witnessed.

17.   If a declarant, who is laying in the bed, is unable to get up to sign due his condition, or it is convenient for him to put thumb impression, he can put thumb impression.

18.   There is usually no time limit that dying declaration  becomes invalid.

 

 

 

 

  
  1. Evidentiary value of dying declaration will change from case to case according to fact and circumstances of each case.
  2. A dying declaration must be recorded in exact words spoken by the declarant.
  3. If a competent Magistrate records a dying declaration in question and answer form , such dying declaration will have much evidentiary value.
  4. If a dying declaration is recorded  No sooner does the information receive than the dying declaration is recorded, tutoring by interested persons can be avoided.
  5. In case more than one dying declarations, all such declarations must be identical.
  6. In  Jai Prakash vs State of Haryana[5], it was observed that ” a statement of victim which was recorded by the police officer in hospital. Later, such statement was taken to be a dying declaration.
  7. In some cases, F.I.R was also considered as a dying declaration.
  8. Inconsistent dying declaration is no evidentiary value. ( Smt Kamla vs State of Punjab[6])
  9. The dying declaration recorded by the Clerk in the presence of Magistrate not inadmissible. Scribe need not be produced to prove it[7].
  10. Despite there is a dying declaration, Court seeks further corroboration. However, Conviction can be based on it without corroboration if it is true and voluntary.

11.   Replies by signs and gestures constitute verbal statement resembling the case of  a dumb person and is relevant and admissible in evidence. (AIR 1949 Nag 405)

  1.  Dying declaration is an exception to hearsay evidence because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died.
  2.  Dying declaration is valid both in civil and criminal cases whenever the cause of death comes into question.
  3.  Dying declaration not attested by wife or dactor present there. Smacks of concoction. Inconsistency in oral and medical evidence. Conviction cannot be based on such evidence[8].
  4.  It is perfectly permissible to reject a part of dying declaration  if it is found to be untrue and if it can be separated [ Nand Kumar v. state of Maharastra[9].].
  5.  Declarant suddenly dying and his thumb impression taken after his death held dying declaration admissible in evidence. (AIR 1962 SC 1252)

 

 Evidentiary value of dying declaration:-

The Supreme Court in Surinder Kumar Versus State of Haryana has discussed the law relating to the evidentiary value of a dying declaration and whether such a piece of evidence can be the sole factor for convicting an accused.

In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, this Court held as under: “10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. Also see. in Paniben v. State of Gujarat(1992) 2 SCC 474 (SCC pp.480 -8 1, para 18).
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC 104)
 
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC 211)
 
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618)
 
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.,(1974) 4 SCC 264)
 
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC 25)
 
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.,(1981) 2 SCC 654)
 
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455)
 
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar,1980 Supp SCC 769)
 
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.,1988 Supp SCC 152)
 
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, (1989) 3 SCC 390)
 
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700)”
 
(ii) In Puran Chand vs. State of Haryana, (2010) 6 SCC 566, this Court once again reiterated the abovementioned principles.
 
(iii) In Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190, a Bench of three Judges of this Court reiterating various principles mentioned above held that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence.
RELEVANT CASE-LAW AS TO ”DYING DECLARATION”:
  1. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration . [ N Ram vs State[10].]
  1. If the person making it is imbecile or is of tender age and was incompetent to testify due to this reason, that dying declaration would not be valid [R v. Pike. C & P.1829; 3: 598]
  1. As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file [State of Karnataka v. Shivalingappa, 2001 (4) RCR(Criminal) 237 (Karnataka) (DB)].
  1. Even the ”History” given by the injured recorded by the doctor in the case file has been considered as dying declaration by the honorable Court if it is mentioned that the patient told in the history that incident occurred in such and such manner which was responsible for the death of the victim [State of Karnataka v. Shariff [11]].
  1. First information report got recorded by the police has been taken as dying declaration by the Hon’ble Supreme Court of India, when the person did not survive to get his dying declaration recorded [AIR 1976 2199 (SC)].
  1. But, in the case State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H) (DB), it was held that ”when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be treated as dying declaration”.
  1. In the case ”State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)”, it was held that ”A suicide note written found in the clothes of the deceased it is in the nature of dying declaration  and is admissible in evidence under section 32 of Indian Evidence Act”.
  1. In the case, (State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj) , it was held that ” It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence”.
  1. Dying declaration becomes unreliable if it is not as per prosecution version. In the case of ” State of UP v. Madan Mohan, AIR 1989 SC 1519” , the Hon’ble Supreme Court of India held:
  2. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination
  3. Court should satisfy that there was no possibility of tutoring or prompting.
  4. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.
  5. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
  6. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the dying declaration. But court cannot be too technical.
  1. In Barati vs State Of U. P,1974 AIR 839, 1974 SCR (3) 570, it was held that ”There was no reason to discard the dying declaration made by the appellant to the police sub-inspector, The trial Court was wrong in rejecting the dying declaration to the police (F.I.R.) on the ground that the deceased had stated to the doctor that he had become unconscious after the occurrence. There was nothing in the statement recorded by the doctor to indicate that the deceased remained unconscious for. a long time and as such was not in position to lodge the F.I.R. The fact that the language used in the dying declaration made to the doctor was rather chaste would not go to show that the said statement could not have been made by the deceased. As to the language used in the dying declaration there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person. ”
  1. Pakala Narayana Swami vs Emperor ((1939) 41 BOMLR 428; AIR 1939 PC 47 ) on 19/1/1939 , In this case, the statement of Pakala Narayana Swamy’s wife ” he is going to Berhampur to get back his amount” was considered as ”DYING DECLARATION”.

Some important case-law on ”Dying declaration”:

  1. Autar Singh v. The Crown, AIR 1924 Lah 253
  2. Pakala Narayana Swami v Emperor, AIR 1939 PC 47
  3. Hanumant v. State of Madhya Pradesh , 1953CriLJ129
  4. State v. Kanchan Singh, AIR 1954 All 153
  5. Ratan Gond v. State of Bihar , 1959CriLJ108
  6. Allijan Munshi v. State of Maharashtra, (1959) 61 BOMLR 1620
  7. Rajindra Kumar v. State of Punjab, 1960 Cri LJ 851 (P&H)
  8. Harbans singh v state of Punjab, AIR 1962 SC 439
  9. Shiv Kumar v. State of Uttar Pradesh , 1966 Cri AR 281,
  10. Lallubhai v. State of Gujarat, AIR 1972 SC 1776
  11. Onkar v. State of Madhya Pradesh, 1974 CriLJ 1200 (MP)
  12. Barati vs State Of U. P,1974 AIR 839
  13. Munnu Raja and Anr. v. The State of Madhya Pradesh AIR 1976 SC 2199
  14. State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj)
  15. Manohar Lal v. State of Punjab , 1981 CriLJ (SC) 1373
  16. State of Punjab v. Savitri Devi, 1983 (2) Crimes 547
  17. Sharad Birdhichand Sarda v. State of Maharashtra , 1984CriLJ1738
  18. State of UP v Ram Sagar Yadv, AIR 1985 SC 416
  19. State (Delhi Administration) v. Laxman Kumar and Ors, AIR 1986 SC 250
  20. State of Assam v Mahim Barakataki, AIR 1987 SC 98
  21. State of UP v. Madan Mohan. AIR 1989 SC 1519
  22. Charipally shakaararao v Public prosecutor HC of AP AIR 1995 SC 777
  23. State of Rajasthan v kishore, AIR 1996 SC 3035
  24. Paniben v state of Gujarat, 1992 (2) SCJ 509
  25. State of HP v Hem Raj, 1992 SLC 158 P 169 (HP)
  26. Jagga Singh v. State of Punjab, AIR1995 SC 135
  27. Najjam Faraghi in alias Nijjam Faruqui v. State of West Bengal 1996CriLJ866
  28. S. Walia v. State of Punjab 1998 CriLJ (SC) 2524
  29. Shyam Singh Hada v State of Rajasthan, 2000 Cri LJ 1437 (Raj)
  30. Sudhakar & Anr v. State of Maharashtra, AIR 2000 SC 2602
  31. Ronal Kiprono Ramkat v State of Haryana , AIR 2001 SC 2488
  32. State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)
  33. State of Punjab v. Kikar Singh, 2002 (30 RCR(Criminal) 568 (P & H) (DB)
  34. Santosh Kumar v State of U.P., 2002 CriLJ (SC) 301
  35. State v. Maregowda, 2002 (1) RCR (Criminal)376 (Karnataka) (DB)
  36. Laxman v. State of Mahrashtra, 2002 Cri L J 4095, (2002) 6 SCC 710
  37. Shambhu v State of Madhya Pradesh, AIR 2002 SC 1307
  38. P V Radha Krishna v. state of Karnatka, AIR 2003 SC 2859
  39. Narain Singh v. State of Harayana , AIR 2004 SC 1616
  40. Viramji Mohatji Thakore v. State of Gujarat, 2005 (2) GLR 1622
  41. Dil Bahadur Tamag v. State of sikkim, 2005 CrLJ 786 p 798
  42. Raja Ram v. State of Rajasthan, (2005) 5 SCC 272
  43. Viramji Mohatji Thakore v. State of Gujarat, 2005 (2) GLR 1622
  44. Nirmal Lousi v. State of Banaswadi police, Bangalore, 2005 (1) Kar L J 213
  45. State of Punjab v. Chatinder Pal Singh and Ors, AIR 2009 SC 974

CONCLUSION:

With propound sense of regret, I crave the indulgence of the officials and others concerned , who record dying declaration, it is suggested that whenever dying declaration is to be recorded, it must be recorded very carefully keeping in mind the sanctity which the court of law attaches to the  dying declaration.

—x—

[1]    ILR 7 385

[2]    Yet, it was held that ”Dying declaration incomplete as deceased not being able to answer further, held could be relied upon. (AIR 1956 SC 168). ”

[3]    State of Haryana vs Manageram & others (AIR 2003 SC 558)

[4]    Pakala Narayana Swami vs Emperor

[5]    (1998) 7 SCC 284

[6]    AIR 1993 SC 374.

[7]              (52 Cr.L.J 883)

[8]    AIR 1981 SC 1578.

[9]      Cri LJ 1988 1313

[10]   AIR 1988 SC 912: 1988 Cri LJ 1485

[11]    2003 CAR 219-228, (SC)

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