Dying Declaration
Dying Declaration
Dying Declaration
A Project Submitted
On
DYING DECLARATION- AN ANALYSIS OF ITS PROVISIONS
Law of Evidence.
Submitted
To
Faculty: Prof. Khusnood Akhtar
Submitted by:
Mr. Parth Bhuta
Roll no. 65
Course: B.A.,L.L.B(Hons.)
th
Table of Contents
Chapter No.
Chapter name
Page no.s
Abbreviations
Cases referred
ii
Statutes Referred
Research Methodology
vi
Chapter 1
Introduction
1-3
Chapter 2
Legal Analysis
4-9
Chapter 3
Role of Judiciary
10-13
Chapter 4
Comparative Study
14-18
Chapter 5
Conclusion
19
Chapter 6
Suggestions
20
Bibliography
viii
Annexure
ix
ABBREVIATIONS
1. i.e. that is
2. CriLJ Criminal Law Journal
3. AIR All India Reporter
4. SC Supreme Court
5. viz. namely
6. vs. versus
7. anr. another
8. ors Others
9. USA- United States of America
10. USC United States Code
11. No. number
12. SCR Supreme Court Report
13. SCC Supreme Court Cases
14. WS Written Statement
15. CPC Code of Civil Procedure
16. A.P. Andhra Pradesh
17. Cal Calcutta
18. Pat- Patna
19. Bom- Bombay
20. C.J. Chief Justice
21. Guj Gujarat
22. IEA- Indian Evidence Act
CASES REFERRED
Serial number
10
11
ii
12
13
14
15
16
17
18
Soney Lal Jha vs. Darabdeo Narain Singh) (1935) 14 Pat 461
FB
19
20
21
22
23
iii
24
25
iv
STATUTES REFERRED
Serial no.
A.
B.
C.
RESEARCH METHODOLOGY
A. RELEVANCE OF THE STUDY:
A dying declaration is considered credible and trustworthy evidence based
upon the general belief that most people who know that they are about to die
do not lie. As a result, it is an exception to the Hearsay evidence rule, which
prohibits the use of a statement made by someone other than the person who
repeats it while testifying during a trial, because of its inherent
untrustworthiness. If the person who made the dying declaration had the
slightest hope of recovery, no matter how unreasonable, the statement is not
admissible into evidence. A dying declaration is usually introduced by the
prosecution, but can be used on behalf of the accused.
Dying Declarations form a very important part of evidence. It is one piece of
evidence, which can be a direct reason for conviction of the accused in
criminal cases if the declaration is against him. In civil cases like will and
deed execution, dying declarations play an important role in avoiding disputes
between families as it is the final say of the person on his will. Hence from the
point of view of law, it is important to study dying declarations in the study of
Law of Evidence.
vi
C. RESEARCH QUESTIONS:
The following are the questions on which this research is based:
1. What are the provisions of the Statute?
2. What is the role of the judiciary?
3. What is the implementation of these provisions?
4. What are the provisions in other countries and how similar are they to
ours?
vii
INTRODUCTION
Evolution
The enactment and adoption of the Indian Evidence Act, 1872 (passed by the British)
was a path-breaking judicial measure introduced in British India, which changed the
entire system of concepts pertaining to admissibility of evidences in the courts of law.
Until then, the rules of evidence were based on the traditional legal systems of the
communities in India. The biggest drawback with this traditional system was that they
were different for persons belonging to different castes religious faith and social
position. There was no uniformity in the application of law. The Evidence Act
removed this anomaly and differentiation, and introduced a standard set of law
applicable to all citizens.
The Evidence Act of 1872 is mainly based upon the firm work by Sir James Fitzjames
Stephen, who could be called the founding father of this comprehensive piece of
legislation. The Evidence Act, identified as Act no. 1 of 1872, and called the
Evidence Act, 1872, has eleven chapters and 167 sections, and came into force on 1st
September 1872. Over a period of approximately 140 years since its enactment, the
Evidence Act has basically retained its original form except certain amendments from
time to time.
When Pakistan and India gained independence on 14th and 15th August 1947
respectively, the Act continued to be in force throughout the Republic of Pakistan and
India except the state of Jammu and Kashmir. After the Independence of Bangladesh
in 1971, the Act continues to be in force in Bangladesh, however it was repealed in
Pakistan in 1984 by the Evidence Order 1984 (also known as the "Qanun-eShahadat"). It also applies to all judicial proceedings in the court , including the court
martial as well. However, it does not apply to affidavits and arbitration.
1
2
http://www.britannica.com/EBchecked/topic/285710/Indian-Evidence-Act
Ibid
made by a person who is lying at the point of death, and is conscious of his
approaching dissolution, in reference to the manner in which he received the injuries
of which he is dying, or other immediate cause of his death, and in reference to the
person who inflicted such injuries or the connection with such injuries of a person
who is charged or suspected of having committed them; which statements are
admissible in evidence in a trial for homicide (and occasionally, at least in some
jurisdictions, in other cases) where the killing of the declarant is the crime charged to
the defendant.
Under Section 32 of the Indian Evidence Act, 1872, (hereinafter referred to as IEA),
there are eight circumstances or cases enlisted where a dying declaration may be
admissible. They are as follows:
1. When it relates to cause of death.
2. Or is made in course of business.
3. Or against interest of maker.
4. Or gives opinion as to public right or custom or matters.
5. Or relates to existence of relationship.
6. Or is made in will or deed relating to family.
7. Or in document relating to transaction mentioned in section 13, clause (a).
8. Or is made by several persons and expresses feelings relevant to matter in
question.
th
The most recent case of dying declaration that has been in the limelight can be sited
as the Nirbhaya case, wherein the victim gave a dying declaration about the
perpetrators of the crime through gestures and writing. It was admissible in the Court
when the trial for the case was conducted.
Dying declarations are an exception to the hearsay evidence non-admissibility rule set
out under section 63 of the IEA, which states that oral evidence must be direct. A
declaration made by a person who is dead at the time of the trial or the proceedings
comes under the definition of hearsay evidence. Yet it is admissible in the court of
law.
LORD LUSH, L.J., quoted that A dying declaration is admitted in evidence because
it is presumed that no person who is immediately going into the presence of his
Maker, will do so with a lie on his lips. But the person making the declaration must
entertain settled hopeless expectation of immediate death. If he thinks he will die
tomorrow it will not do.
LORD EYRE, C.B., also held that The principle on which this species of evidence is
admitted is, that they are declarations made in extremity, when the part is at the point
of oath, & when every hope of this world is gone; when every motive of falsehood is
silenced, & the mind is induced by the most powerful consideration to speak the truth;
a situation so solemn & awful is considered by law as creating an obligation equal to
that which is imposed by a positive oath administered in the court of justice.
In the subsequent chapters, the concept of dying declaration has been dealt with and
explained in detail.
5
6
Supra note 4
Ibid
LEGAL ANALYSIS
7
In Ulka Ram v. State of Rajasthan Apex Court held that, when a statement is made
by a person as to cause of his death or as to any circumstances of transaction which
resulted into his death, in case in which cause of his death comes in question is
admissible in evidence, such statement in law are compendiously called dying
declaration.
8
9
The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that
the principle on which a dying declaration is admitted in evidence is indicated in
latin maxim, nemo morturus procsumitur mentri, a man will not meet his maker with
a lie in his mouth. Information lodged by a person who died subsequently relating to
the cause of his death, is admissible in evidence under this clause.
10
8
9
Ibid
question.
11
The enlisted circumstances are important as they are when the declaration is
admissible in evidence. Section 32 has scope for wide interpretations. With years
passing on, there have been many judgments to interpret the concepts in Section 32.
They are as follows:
12
In N Ram v. State , it was held that, most important point of consideration is that
victim was in a fit condition of mind to give the statement when recording was started
and remained in fit condition of mind till the recording of the statement finished.
Merely stating that patient was fit will not serve the purpose. This can be best
certified by the doctor who knows best about the condition of the patient. But even in
conditions where it was not possible to take fitness from the doctor, dying
declarations have retained their full sanctity if there are other witnesses to testify that
victim was in such a condition of the mind, which did not prevent him from making
statement. 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.
Second most important point to be considered is that it should not be under the
influence of any body or prepared by prompting, tutoring or imagination. Even if any
one of these points is proved then dying declaration is not considered valid. If it
becomes suspicious then it will need corroboration.
Dying declaration recorded by the police:
13
In Pearilal Rana vs. State of WB , it was held that dying declaration recorded by the
police does not stand self-condemned but creates suspicion. In emergency, it can be
recorded without calling the magistrate or the doctor.
11
12
13
1992 Cr LJ 2644(Cal)
14
In Thakur Das vs. State of HP , it was held that, statement by a person as to the cause of
the death becomes relevant when the cause of his death comes into question even if the
person was not under the expectation of death at the time of making the statement.
16
By the Meesalla Ramakishan vs. State of AP , a dying declaration made by nods and
gestres or by sign language has been held admissible.
Statements in course of business (Clause 2):
It contemplates a statement by a person whose duty it was to make such a statement
or whose business was such that statements of the kind were to be expected in the
ordinary course of the things. (Soney Lal Jha vs. Darabdeo Narain Singh)
14
2001 Cr LJ 4724 (SC)
15
16
17
18
19
20
21
18
(1935) 14 Pat 461 FB
19
20
th
Ratanlal & Dhiraj Lal , The Law of Evidence, Lexis Nexis, 24 Edition
of making it, that statement may be repeated by the witnesses and is evidence. (The
Queen vs. Ram Dutt Chowdhry)
23
24
In R v. Pike , it was held that 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.
In, State of Karnataka v. Shivalingappa,
25
declaration should be sent to the court like FIR and its Photostat should be kept in the
case file.
It does not matter that the person has put a thumb impression or signed it if this is
duly witnessed. But in the court question does arise if a person who can sign puts a
thumb impression. If a literate person putting the thumb impression is in such a
condition that he cannot sign e.g. he was lying in the bed and could not get up to sign
it or it was inconvenient for him to put thumb impression due to his condition
(intravenous drip on the back of hand) or injury e.g. injury on the right hand in a right
handed person. In the absence of such conditions if there is thumb impression and this
is not witnessed by disinterested persons a doubt may be created whether this was
done after the person died to take revenge by some interested person.
There is usually no time limit that dying declaration becomes invalid if the person
died after many months after making the declaration. Cases are on record when it was
considered valid after 4 months.
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. Hence it is important that if such history is
written as narrated by the victim it should be recorded carefully, keeping in mind the
mentioned finding of the court.
23
24
25
(1874) 23 WR (Cr) 35
C & P.1829; 3: 598
2001 (4) RCR(Criminal) 237 (Karnataka) (DB)
First information report got recorded by the police has been taken as dying declaration
by the honorable Supreme Court, when the person did not survive to get his dying
declaration recorded. But when patient remained admitted in hospital for sufficient
days i.e. for 8 days FIR cannot be treated as dying declaration.
26
27
State v. Maregowda
A suicidal 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.
26
27
AIR 1976 2199 (SC) State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H) (DB)
2002 (1) RCR (Criminal) 376 (Karnataka) (DB)
ROLE OF JUDICIARY
The Judiciary plays an important role in the interpretation of the statutes as per the
facts and the circumstances of each case. The precedents set by the Judiciarys
interpretation become an important source of law in case of vague statutory
provisions. The same holds true for Section 32(1) of the IEA. There have been many
judgments by the courts, which act as laws for the specific interpretation of the broad
provision. Some of them are as follows:
Gestures & signs form
28
In the case of Queen-Empress v. Abdullah , the accused had cut the throat of the deceased
girl & because of that, she was not able to speak so, she indicated the name of the accused by
the signs of her hand, it was held by the full bench of the Allahabad High Court If the
injured person is unable to speak, he can make dying declaration by signs & gestures in
response to the question. In another case The Apex Court observed that the value of the
sign language would depend upon as to who recorded
the signs, what gestures & nods were made, what were the questions asked, whether
simple or complicated & how effective & understandable the nods & gestures were.
Language of statement
In Najjam Farooqui vs. State of West Bengal, it was held that, Where the deceased
made the statement in Kannada & Urdu languages, it was held that the statement
could not be discarded on that ground alone, or on the ground that it was recorded
only in Kannada. Where the statement was in Telugu & the doctor recorded it in
English but the precaution of explaining the statement to the injured person by
another doctor was taken, the statement was held to be a valid dying declaration.
29
30
that a
dying declaration made to the relatives of the deceased, when properly proved can
28
29
30
10
also be trusted. In this case the deceased who was killed by sprinkling acid on him
first made the statement to his brother & son, repeated it at the police station & again
at the hospital charging the accused, the court held that the statement was worthy of
credit. Where the dying statement was recorded by the wife of the deceased, the
Supreme Court did not reject it only on that ground, though it added that such
evidence should be scrutinized with care.
Evidentiary Value of Dying Declaration
31
In Khushal Rao v. State of Bombay , Apex Court laid down the following principles
related to dying to dying declaration :
1. There is no absolute rule of law that a dying declaration cannot be the sole
basis of conviction unless corroborated. A true & voluntary declaration needs
no corroboration.
2. A dying declaration is not a weaker kind of evidence than any other piece of
evidence;
31
32
11
3. Each case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made.
4. A dying declaration stands on the same footing as other piece of evidence &
has to be judged in the light of surrounding circumstances & with reference to
the principle governing the weight of evidence.
5. A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, &, as far
as practicable in the words of the maker of the declaration stands on a much
higher footing than a dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human memory & human
character.
In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed in the night; whether
the capacity of man to remember the facts stated had not been impaired at the time he
was making the statement by circumstances beyond his control; that the statement has
been consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it; & that the statement had been made at
the earliest opportunity & was not the result of tutoring by interested party.
In Ramilaben v. State of Gujarat
33
injuries, the injured dying 7-8 hours after the incident, four dying declarations
recorded but none carried medical certificate. There were other doubtful features,
evidence not taken into account.
In the case of State of U.P. v. Madan Mohan
34
1. 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.
2. Court should satisfy that there was no possibility of tutoring or prompting.
33
34
12
3. Certificate of 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.
4. Dying declaration should be recorded by the executive magistrate & police
officer to record the dying declaration only if condition of the deceased was so
precarious that no other alternative was left.
5. Dying declaration may be in the form of questions & answers & answers
being written in the words of the person making the dying declaration. But
court cannot be too technical.
13
COMPARATIVE STUDY
USA
Under the Federal Rules of Evidence, Article VIII talks about Hearsay Evidence. Rule
804 talks about the circumstances in which the Declarant is unavailable. Rule 804 (a)
(4) states, Declarant cannot be present or testify at the trial or hearing because of
35
Apart from this, the other principles on which dying declaration is admissible in
evidence are:
1. The declarants statement is being offered in a criminal prosecution for
homicide, or in a civil action;
2. The declarants statement was made while under the belief that his death was
imminent; and
3. The declarants statement must relate to the cause or circumstances of what he
believed to be his impending death.
Most states follow the Federal Rules of Evidence and admit dying declaration for
criminal homicide trials and civil proceedings. However there are certain states who
admit dying declarations for all the cases.
As per the law, the declarant need not die after the declaration is made. There has to
be a belief that the death is imminent and that the declarant cannot be available in the
court. However, if the stipulations or the conditions are not met with, then it would
constitute hearsay and would not be admissible.
Here are some recent cases, which brought changes to the principles of dying
declaration.
35
https://www.law.cornell.edu/rules/fre/rule_804
14
Crawford v. Washington
36
37
The Court held in this case that testimonial statements could come under the forfeiture
exception of hearsay if the defendant ahs willed the unavailability of the witness for
the testimony.
The primary difference between the Indiana and the US law is that India is strictly
restricted to civil and criminal homicide cases. However in certain USAs states,
15
38
38
http://www.legislation.gov.uk/ukpga/2003/44/section/116
16
39
The primary distinctions between the Indian law and English Law in terms of dying
declaration are as follows:
1. The Indian law on the question of the nature and the scope of dying
declaration has made a distinct departure from the English law where only the
statements, which directly relate to the cause of the death are admissible. It is
well settled by now that there is difference between the English rule and the
Indian rule with regard to the necessity of the declaration having been made
under the expectation of death.
2. Clause (1) of the Section 32 of the Indian Evidence Act provides that
statements, written or verbal of relevant facts made by a person as to the cause
of his death or as to why of the circumstances of the transaction which
resulted in his death. While in the English law the declaration should have
been made under the sense of impending death whereas under the Indian law,
it is not necessary for the admissibility of a dying declaration that the deceased
at the time of making it should have been under the expectation of death.
3. The Second part of Clause (1) of section 32 of IEA, namely the circumstances of
the transaction which resulted in his death, in cases in which the cause of that
persons death comes into question is not found to be in the
English law. As distinguished from the English law, Section 32 does not
require that such a statement should have been made in expectation of death.
Statement of the victim who is dead is admissible in so far as it refers to cause
of his death or as to any circumstance s of the transaction which resulted in his
death. In other words, the statement of the deceased relating to the cause of
death or the circumstances of the transaction which resulted in his death must
be sufficiently or closely connected with the actual transaction.
4. Due weight is required to be given to a dying declaration keeping in view the
legal maxim Nemo moriturus praesumitur mentire. To make such a
statement substantive evidence, the person or the agency relying upon it is
under a legal obligation to prove the making of a statement as a fact. In cases
where the original recorded dying declaration is proved to have been lost and
39
Supra note 38
17
18
CONCLUSION
Dying Declarations have been fairly crystal clear in the law. Apart from that the
judiciary has also played an important role in the interpretation of the law and
expanding the scope of the statute.
Dying declaration is a very important piece of evidence. It is the most convincing and
direct evidence for the prosecution to prove its case against the accused. Apart from
the ocular evidence and other direct evidence, dying declaration is self-speaking
evidence and can prove much more that the eyewitness can depose. Based on the
maxim nemo mariturus presumuntur mentri, men may lie at any circumstance but
th
Law Commission report reviewed the IEA and has suggested many
SUGGESTIONS
The following are the suggestions for amending the law relating to dying declarations:
1. Noticing lacunae in the process of recording dying declarations of victims of
burns and allied cases under the Evidences Act, there should be an amendment
in the law for recording the declaration in presence of a judicial officer. There
have been many cases where dying declarations were recorded in the presence
of culprits, namely husband and in-laws of the victim, and also false
implication of husband and his family members based on dying declaration
given at the instance of close relatives of the victim.
2. The principle that the person nearing his death will not lie can be disputed. It
is an opinion that dying declaration cannot be the sole basis for the decision of
the case. Especially in cases where the declarations keep changing, the
reliability on the declaration would be reduced and hence it would raise a
question on the motive of the declarant.
20
BIBLIOGRAPHY
Books referred:
x
Ratanlal & Dhiraj Lal , The Law of Evidence, Lexis Nexis, 24 th Edition
Websites Referred:
x
www.britannica.com
www.legalservicesindia.com
www.law.cornell.edu
www.legislation.gov.uk
www.jstor.com
www.indiankanoon.org
www.manupatra.com
www.hindustantimes.com
www.timesofindia.indiatimes.com
vii
ANNEXURE
Facts: A gets shot while he was walking on the road. After the shot A was taken to
Kokilaben Dhirubhai Ambani Hospital. There after a surgery was performed
and the bullet was taken out of the lower abdomen of the victim.
But after the operation the condition of the victim became critical and at that
time the victim started narrating the scene and at that time the doctor took all
the note of the things said by the victim. And the police was on the way to the
hospital the doctor had to take all the statement. When he was giving the
statement he also stated that C has his killed him because of some personal
enmity and grudges.
Q9.) Did you note all the things which were stated to you by the
victim and in which language did he state them?
Ans. I might have missed out some things which he stated because of
some reasons and the language in which he stated was Hindi.