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Status of dying declaration in India


Authored By Aprajita Priyadarshini


Keywords: Dying Declaration, evidence, credibility, Indian Evidence Act, 1872.


Abstract

The entire story of the commission of a crime is known by two parties in totality- the accused, one who commits the crime and the victim, against whom the crime has been committed. In order to substantiate their versions of the incident, the statements of the accused and the victim are to be supported with witnesses or evidences. However, there is an exception to this accepted system which falls under Section 32 of the Indian Evidence Act, 1872 called the Dying Declaration. This article tries to cover in brief the various aspects of Dying Declaration along with the position of this norm in India.


Introduction

Dying declaration or Leterm Mortem is usually defined as the last words of a person before his death. Whenever a person who is the victim or anyone who has significance in the trial and proceedings of any case, makes statements defining the circumstances or causes of the incident in question or the reasons for his death, just before his death, his statement can be admissible in the Courts of Law as evidence of high credibility. This provision of admissions to the last words of a person as evidence has been accepted as an exception to the general provisions of admissibility under the Indian Evidence Act. It is an exception to the provision of excluding the hearsay evidence rule and also to the fact that the statement is made admissible without any cross-examinations.

The principle upon which the Dying Declaration of a person has been made admissible is NemoMariturusPresumunturMentri which means that a man will not meet his maker with a lie on his mouth. In India, it is accepted and recognized fact that a dying man seldom lies or that truth sits upon the lips of a dying man. Owing to these laid principles the statement by a dying man is admissible as evidence and is the highest in preference hierarchy of credible evidences.


Types of Dying Declaration

When a person is aware that he will not survive and is on his death bed but is in a fit mental status to make a rational narration or statement about the circumstances causing his death his Dying Declaration can be made in either of the following ways-


· Oral or Written- Wherein a person is capable of narrating the circumstances or causes of his death, his oral statement must be recorded as evidence. It is generally accepted that he is at a freedom to make a statement in his mother-tongue and it should also be recorded in the same language.

The statement which could not be finished in totality or that which is incomplete in its meaning or accountability of the cause of the death cannot be admissible in the Court as evidence. But any statement, though incomplete in the sense but conveys to the declaration all the necessary or relevant facts as information to a certain fact then the statement can be made admissible.


· Signs or Gestures- There is also a possibility that the person might not be able to speak due to injuries or seriousness of his health and thus his indications via signs and gestures can also be regarded as admissible evidence. Likewise had happened in the very famous Nirbhaya Rape case of 2013 wherein the third declaration by her was mostly in gestures. The Bench had said that not just words but even gestures can be made admissible in courts. The interpretation of these gestures might be tough and certain checks are put up to ensure its credibility like what were the questions asked and of what nature-simple or complex, what kind of gestures had been made and who had recorded the statement.


· Question-Answer Form- When the victim is not able to recall all the details, he can be directed to answer in the way of a questionnaire to which the victim can answer. The main catch here is that the various answers will eventually lead to up complete the facts or circumstances of the case and that the statement must not change in its meaning if the question is put in a different way.


Position of Dying Declaration in India

At many instances, the credibility of the Dying Declaration has been put to question. The Supreme Court in Ram Nath Madhoprasad v. State of M.P.[1] said that it is not safe to convict an accused merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing his imagination while he was making that declaration. But it could not be laid down as a firm rule that Dying Declaration cannot be taken as evidence without any corroboration[2].


In the case of Kushal Rao vs. State of Bombay[3], the Apex Court has specified the position of Dying Declarations in Indian evidence system, the right manner of recording such statements and the admissibility that should be given to such statements as evidence. Dying declaration was said to in no less footing than the other pieces of evidence and that each case needs to be decided upon its own merits keeping in view the instances under which the declaration has been made. The declaration statement must be consistent throughout if there had been several chances for making one and that it was not made out of tutoring or influences by or with the aid of the interested party.

[1] AIR 1953 SC 420 [2] Kushal Rao vs. State of Bombay, 1958 AIR 22 [3] Supra Note 3