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Dying declaration: An overview


Authored By: Neha Juneja


“No man shall meet his maker with a lie in his mouth.”

In a particular case, the best two witnesses are the accused and the victim themselves. But it has been a general principle of law that the statements of these two parties are not of much weightage as it may happen that the parties are lying and also they will state whatever is required in there favour in order to win the case. So any third person is brought into the picture and his statement is recorded. At times the statement of the parties can also turn into dying declaration if they die right after making the statement. The statement of the declarant is termed as dying declaration when he is unable to testify. This happens when the declarant has died and has said something just before his death. Whether it will be admitted as a statement of the witness or not depends on various circumstances.


Introduction

The dying declaration is defined under section 32(1) of Indian Evidence Act,1872. It is considered as a substantial piece of evidence. It can be the sole basis for conviction if it is highly reliable, trustworthy, inspires confidence but as a matter of prudence may require corroboration. It had to be voluntarily when the person is in a fit state of mind.

If in case it is an oral dying declaration it has to be proved that it has been made by that person (deceased) and in case of written dying declaration, it has to be proved that the thumb impression or signature is of that person. Also, it can be made by gestures but the reliability is not much in that case. Post mortem report is overridden by the observation of the doctor who examined the patient because it may have had happened that at the time of making the dying declaration for some time, the deceased was in a fit state of mind and in that case the post mortem report fails.

A recorded dying declaration is of more reliability than an oral one. In cases where the body is burnt up to 90%, courts will generally not rely on the dying declaration but if it is proved beyond a reasonable doubt that the deceased was in a fit state of mind while making the statement then it can rely even in cases on 100% burns. In cases where the language of the statement is translated into some other language, then the reliability is less unless it is proved that the translation is a correct one.

Kanchi Komuramma vs. State of Andhra Pradesh[1], the most important aspect of dying declaration is that it is trustworthy since the person is declaring his cause of death. However, the magistrate must take precaution while recording the dying declaration regarding the state of mind of the declarant and also obtain a certificate from the doctor.

Koli Chunnilal vs. State of Andhra Pradesh[2], even if the doctor’s certificate is not obtained then also the dying declaration will not become inadmissible. However, it definitely throws some light on the fact that the declarant must not have been in a fit state of mind.


Principles governing dying declaration

1. It should be recorded in the same language as it was spoken and should be spoken in the mother tongue of the declarant.

2. Recording of dying declaration should be done as soon as possible without any delay as soon as possible in order to avoid tutoring and fabrication. Any amount of unreasonable delay will make the dying declaration lose its evidentiary value.

This could be easily rebutted by:

i.) Explaining the delay

ii.) By proving the impossibility of any fabrication or tutoring

3. There should not be any inconsistency within itself of the dying declaration.

4. Even in cases of 100% burns, a doctor’s certificate makes the dying declaration trustworthy.

5. If there are several dying declarations of the same nature then the first one will be admissible in the court of law.

Sham Shankar Kankaria vs. the State of Maharashtra[3], the conviction could be done even on the basis of dying declaration even if the declarant could not be cross-examined. But if the doctor’s certificate shows that the declarant was not in a fit state of mind and eyewitnesses state something else other than the statements written in dying declaration then the evidence of eyewitnesses will be taken into consideration as a more substantial piece of evidence.

Ravi Kumar @ Kutti Ravi vs. State of Tamil Nadu[4], in case of post mortem report and evidence of the doctor who examined the deceased, then the evidence of doctor will be relied upon.


Essential conditions of recording a dying declaration

1. The dying declaration needs to be signed by the declarant.

2. Also, it needs to be signed by a witness.

3. The person recording the dying declaration (magistrate) should also sign it.

4. Certificate of fit state of mind of the declarant needs to be obtained from the doctor under whom the declarant was in observation.

5. It should be recorded in a proper manner with due diligence. Even if the magistrate is not called to record the dying declaration then proper reasons need to be recorded for not calling him.

Some other important aspects of dying declaration

It is not the requirement of law that the dying declaration should be recorded by the magistrate. However, if recorded by judicial magistrate it will be more trustworthy. Recording of dying declaration by police officers is not disproved but creates suspicion. A clear and corroborated dying declaration cannot be rejected just because it was recorded by a police officer.

When the scribe is not examined and the prosecution is not able to explain why the scribe could not be produced in the court, then the dying declaration is liable to be discarded. Though, exact words need not be produced.

If something is blurred and overwriting is done to make it clear then it will be accepted by the court. In cases of suicide, the last note by the person committing the suicide i.e. the suicide note is treated as the dying declaration.

If there is more than one dying declaration then all of them are treated as one statement and if no inference could be drawn from all of them then the statement might be unworthy of credit.

The cause of death should be similar to the one mentioned in the dying declaration and if it comes out in the post mortem report that the cause of death was different then the dying declaration fails to prove it’s worthiness.

Pakla Narayan Swami vs. King-Emperor[5], it was held that circumstances mentioned in the dying declaration should match with the exact cause of death and if there is any discrepancy then the dying declaration is liable to be rejected.

Sharad vs. State of Maharashtra[6], the letter written by the woman to her parents about her ill-treatment by in-laws. About four months after that she died. The letters were in close proximity of time of her death so they were treated as her dying declaration. All that is required is that there should be a nexus between the circumstances stated and the cause of death.


Important case law of dying declaration by actions/signs

Queen-Empress vs. Abdullah[7], The accused was charged with the murder of a prostitute by cutting her throat with a razor. Also, there was a cut on the left thumb of the deceased. When she was taken to the police station she was questioned there by her mother in the presence of the sub-inspector. She was again questioned by the sub-inspector at the same time. Later on, deputy magistrate and the surgeon asked her various questions related to her injury. She was not able to speak but was conscious enough to make signs.

Magistrate asked her who wounded her by stating several names. She made a negative sign waiving her hand backwards and forward. Then she was asked whether a person named Abdullah had wounded her. She waved her finger in to and fro motion this making a positive sign. This was understood as a sign of affirmation by the magistrate.

It was held that the questions and signs can together be held as an oral dying declaration and would be a verbal statement under section 32(1) of Indian Evidence Act,1872 and is therefore admissible.


FIR as dying declaration

K.Ramachand Reddy vs. Public Prosecutor[8], the person lodging the FIR died later on. The FIR was treated as the dying declaration.


Evidentiary value of dying declaration

K. Ramachandra Reddy vs. Public Prosecutor[9], It was held that dying declaration is a statement which is not taken on oath and therefore cannot be examined since the declarant had died, the court has to take utmost care in scrutinizing the statement made in dying declaration before accepting it. Also, it is undoubtedly acceptable under section 32 of the Indian Evidence Act, 1872. Court has to make sure that the deceased was in a fit state of mind and the deceased had the clear opportunity to identify his assailants and the statement is made without any threat or influence. Once the court is satisfied that it is true and voluntarily made, it is sufficient for the conviction of the accused without any further corroboration.


Guidelines related to the admissibility of dying declaration

Kushal Rao vs. State of Bombay[10], The following principles were laid down by the Supreme Court:

1. No rule of law is there which states that dying declaration cannot be the sole basis for conviction without any corroboration. A true dying declaration which is made voluntarily requires no corroboration.

2. A dying declaration is not weak as compared to other pieces of evidence

3. Each case is different and it needs to be examined in it ‘sown circumstances keep in mind in what conditions the dying declaration was made.

4. A dying declaration is a piece of strong evidence and stands at par with other pieces of evidence and requires it’s the judgement to be made in light of the other circumstances of the case with reference to the principle used to weigh the evidence

5. A dying declaration recorded by a competent magistrate is a good piece of evidence and it has to be in the form of questions and answers and also it has to be in the original language of the maker or declarant.

6. In order to test the reliability of the dying declaration, the court has to keep in view the circumstances like the opportunity with the dying person to make observations, for example, whether there was ample light to see the face of the person attacking him.

7. The statement has to be consistent throughout if the maker has made various declarations before getting on death bed.

[1] AIR 1995 Supp(4) SCC 118 [2] (2000) 4 GLR 3277 [3] 2005 CriLJ 502 [4] AIR 2006 SC 1448 [5] 1939 (41) BOM. L.R 428 [6] AIR 1984 SC 1622 [7] (1885) ILR 7 ALL 385 [8] 2009 ALL MR (Cri) 1755 (S.C) [9] Supra [10] 1958 AIR 22