Dying Declaration: Can conviction be based solely on it?

5 Jan 2023  Read 815 Views

Indian Evidence Act, passed in 1872, had no clue that the world would witness great technological advancements in the future. Back then, cameras, mobile devices, the internet, etc., were unimaginable. So the law included a provision wherein anybody can record, in writing, the statement of a medically vulnerable person and get his/her thumb impression or signature. Similarly, recording a statement via gestures, signs, oral or written impressions of a victim stating the cause of his/ her death evolved to be known as a dying declaration. 

But one must remember that in the case of the commission of offences, only two parties know what exactly happened; the accused & the victim. So, a story from both sides might vary; therefore, witnesses become crucial evidence. 

A dying declaration portrays the story of the victim’s side only, and yet it is considered admissible as it is considered that a dying man never lies, and if the victim does not die in the end, the statement then becomes inadmissible. This article discusses the meaning, provisions, evidentiary value and cases of dying declaration plus many more.

What is a dying declaration?

A dying Declaration means a statement made by the person while he was dying and states the cause of his death, the only statement given just prior to the death of a person. But who can make it? Any person who is conscious or has full control over his mind (Compos Mentis) & knows that death is about to happen can make a declaration and declare his death’s cause. The dying declaration is always admissible and treated as evidence in Court which can be either oral, written or by conduct. 

Provision of dying declaration in India

Section 32 of the Indian Evidence Act is the provision on dying declaration stating eight circumstances It acknowledges that a dying man seldom lies meaning that “reality sits upon the lips of a demise man.” Section 32(1) of the Indian Evidence Act backs the idea of dying declaration and deals with the cases wherein a person is dead or who can’t be found. This dying declaration is admissible in evidence even if it has not been made on oath. Anyone who makes a Dying Declaration must be competent while making such a statement or else it is inadmissible. Recording the Dying Declaration is very crucial and challenging.We can check the illustrations mentioned under Section 32 of the Indian Evidence Act. Now, let’s refer few cases for easy understanding that is; according to Section 32(1) itself:

In Emperor vs Abdullah, it was held that conduct must be relevant, just as the dying declaration. Also, it is a well-known fact that a statement may be oral or written. So, this statement must relate to:

  • Cause of death

  • Circumstances of the transaction

  • Resulted in the death

Types of dying declaration

No particular type is specified concerning the dying declaration. It can be oral, written, gestures & signs, thumb impression or even incomplete or can also be in the form of a question answer. However, there must be a distinct & definite assertion on the person's part who produces the statement. Also probably the declaration should be written in the exact words stated by the person who produces the statement. But remember that when a magistrate records the dying declaration, it should be in Question-Answer form as the magistrate would want accurate answers, as in certain cases, it becomes the sole basis of conviction. 

Gesture and Signs

  • In Queen-Empress v. Abdullah (1885), the appellant was charged with the offence of murder before the court of session wherein the appellant cut the throat of the victim, after which she was unable to speak but was conscious & could make gestures and signs. The magistrate uttered several names one by one asking if they had wounded her, to which the victim moved her hand forward and backwards and made signs. This is how the magistrate recorded the dying declaration & the same was accepted as evidence. Similarly, in the recent 
  • In Mukesh & Ors. v. State of NCT of Delhi (2012), that is, the “Nirbhaya Gang Rape Case,” the victim made a dying declaration in the form of a sign and gesture, which was recorded. The first declaration was recorded by the doctor when she was admitted and the second by the sub-divisional magistrate (SDM) during which she made the exact statements of such mishappenings. Then, the third declaration was recorded by the metropolitan magistrate on December 25, mostly by gestures. The bench said that as far as the third dying declaration is concerned, this court has already held that the dying declaration made through signs, gestures or nods is admissible as evidence.

Oral and written

An oral dying declaration is admissible as evidence in a court of law as it is an exception to the general rule of hearsay evidence which is no evidence in the eyes of the law. 

  • In Amar Singh v. State Of Rajasthan (2010), the deceased’s mother and brother provided evidence, that the deceased made the statement a month before the suicide stating that the appellant, her husband used to taunt the deceased, saying that she had come from a hunger house and demanded money. It was held that the dying declaration is admissible, and the appellant can be convicted under section 304B and 498A of IPC. 
  • In Pakala Narain Swamy v. Emperor (1939). Lord Atkin ruled that “the circumstances of the transaction which resulted in the death of the declarant will be admissible if such transaction has some proximate effect”.

Incomplete Dying Declaration

When a person makes a dying declaration which is found to be incomplete will not be admissible as evidence in a court of law. When the deceased's condition is very serious & at his/ her own request, a statement is made by him/ her in doctor’s presence which was later taken by the police, however, could not be completed due to the reason that the deceased fell into an unrecoverable coma. Then, in such a case the dying declaration will not be admissible.  

Now, if the statement is incomplete but delivers the declarant all mandatory information or what he wanted to state when stated as complete in respect of some fact, then the statement would not be excluded because it is incomplete.

Can FIR act as a dying declaration?

If the victim lodges an FIR and then dies, then will this FIR be considered a dying declaration?

In K.Ramchanda Reddy vs Public Prosecution (1976), it was held that it will be considered a dying declaration. So, the death of the person is crucial while making the statement. Otherwise, it will become inadmissible. However, the statement might be relied on under Section 157 of the Evidence Act (Former statements of witness may be proved to corroborate later testimony as to the same fact) to corroborate his testimony to contradict him under Section 145. It can be used to corroborate the evidence in court under Sections 6 and 8.

Who can record a dying declaration?

Any person can record a dying declaration, even a police officer. But if a Judicial Magistrate records it, it will have more reliability.

  • In the State of U.P. vs Shishupal Singh (1992), the dying declaration was recorded by the Magistrate, which the dead person neither signed nor contained the date and time of its recording, and the prosecution failed to provide any explanation that the deceased was unable to sign it. Hence it was ruled that such a dying declaration soaked with so many suspicious situations created doubt about its genuineness & conviction based on it was not secure or safe. 
  • In Ram Singh vs State (Delhi Administration) (1995), Delhi High Court ruled that a clear and corroborated dying declaration can not be rejected solely because it was recorded by a police officer.

Is suicide note the same as dying declaration?

  • In Rachana Ravindra Jain v. State of Gujarat and others (2019), Gujarat HC stated that a dying declaration is a statement made by a dying person in his last moments on situations & facts that led to his demise. A suicide note can be a dying declaration in which the deceased states the accused name.

  • In State v. Maregowda (2002), it was held that a suicide note is also considered as evidence under Section 32(1) that is, as a dying declaration.

  • In Pakala Narayana Swami vs Emperor (1939), Even the wife’s statement that her deceased husband had gone running some errands was enough to qualify as a dying declaration, here the wife deliberated that ‘her husband had gone to Berhampur to take payment’ and this was taken as a dying declaration.

This Pakala case proved that even the circumstances or documents or statements which is collateral to the case can also be admitted as evidence as a dying declaration.

Evidentiary value of dying declaration

It is a known rule that hearsay evidence is not accepted in the court, but the dying declaration is an exception to this rule

So, what do you mean by hearsay? Hearsay means ‘something that is not directly heard and has no credibility until proven with facts’. A statement that is provided under hearsay has no merit in the law as it is second-hand information unless it is proven.

For example: If I hear from my driver that a woman was running on the road with a bloodied knife, this will be hearsay and inadmissible.

Also, Section 60 of the Indian Evidence Act clearly states that oral evidence must be direct & the incident must be directly seen and heard, or the person must sense the fact to allow it to be admissible as evidence in a court of law. So, hearsay is secondary evidence This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie in his mouth.

In Satpal vs State of Haryana (2021), also called the Kerosene oil Burn case, the wife was set up on fire by her husband after an argument by pouring kerosene on her. Due to 90% burns on her body and getting hospitalised, she could only state the incident. Because of the statement in such a serious condition, the Court admitted her dying declaration as evidence.

Conclusion

Under Indian laws, the dying declaration has been one of the most significant pieces of evidence. Even the accused's conviction can be solely based on a dying declaration. Therefore, one must record a dying declaration with utmost care. It’s also important proof towards the accused, and a conviction can be based solely on a dying declaration. Given the importance of the dying declaration, the courts are nowhere lagging behind & have developed several ideas to evolve its principles. 

About the Author: Kakoli Nath | 137 Post(s)

Kakoli Nath is a legal Content Curator at Finology Legal who pursued BBA.LL.B (5 years integrated course) & she is a patent analyst. She has pursued advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune.

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