DYING DECLARATION: ‘WORDS SAID BEFORE DEATH’

’A person who is about to die would not lie’

The principle underlying admissibility of dying declaration is reflected in the legal maxim‘Nemo Moriturus Praesumitur Mentire, which means “a man will not meet his maker with lie on his mouth”. Therefore, no one at the point of death is presumed to lie. In the case of P.V. Radhakrishna versus State Of Karnataka, (2003) 6 SCC 443, the Hon’ble Supreme Court has dealt this principle in detail .

A famous poet, Mathew Arnold once said, ‘Truth sits upon the lips of a dying man.’

It has been said that when a person is at the point of death, the situation is so solemn and serene that it hushes every motive to lie. It is for this reason the requirements of oath and cross-examination are dispensed with.

A dying declaration is also called as ”Leterm Mortem” which means “Words said before death”.

What is dying declaration

Word “Dying Declaration” means a statement written or verbal of relevant facts made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death. Dying declaration is an exception to the general rule contained in Section 60 of the Evidence Act which provides that oral evidence must be direct i.e. it must be the evidence of a witness, who says he saw it.

The dying declaration is, in fact, the statement of a person, who cannot be called as witness and therefore, cannot be cross-examined.

In the case of “Uka Ram vs. State Of Rajasthan, (2001) 5 SCC 25” ,the Hon’ble Supreme Court held that  “when the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations.”

Form of Dying Declaration

There is no particular form of dying declaration.  However, dying declaration may be in the following forms:-

• Written form;
• Verbal form;
• Gestures and Signs form;
• Narrations.

In the case of “Queen-Empress v. Abdullah,(1885) ILR 7ALL 385”, accused had cut the throat of the deceased girl and 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 Hon’ble Allahabad High Court that, “If the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.”

In the famous Nirbhaya case titled as “Mukesh & Anr versus State for NCT of Delhi & Others, (2017)6 SCC 1“, three dying declarations of Nirbhaya wererecorded. First one was taken by a Doctor when she was admitted at the Hospital  on 16^thDecember, 2012, second one was taken by the SDM on 21^st December, 2012 and the third one was recorded by the Magistrate on 25^th Dec, 2012 which was mostly through gestures. Convicts had challenged the validity of the dying declarations as there were discrepancies in her statement. The Hon’ble Supreme Court while rejecting the plea of the accused held that a dying declaration need not necessarily be by words or in writing. It can be by gesture or by nod. The Hon’ble Court also said that in the case of rape and sexual assault, the evidence of prosecutrix is very crucial and if it inspires confidence of the court, there is no requirement of law to insist upon corroboration of the same for convicting the accused on the basis of it.

Legal provision

The provision which deals with the concept of dying declaration is enshrined in the Section 32(1)of the Indian Evidence Act, 1872 which says that “when the statement is made by a person as to the cause of his death, or as to 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 them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

CONCEPT OF Multiple Dying Declaration

The legal position regarding multiple declaration has been settled by Hon’ble Supreme Court in catena of decisions.

In the case of “Kundula Bala Subrahmanyam and Anr. versus State Of Andhra Pradesh, 1993 SCR (2) 666”, the Hon’ble Supreme Court has held that “If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.”

In “Ashabai & Anr. versus State Of Maharashtra, AIR 2013 SC 341”, the Hon’ble Supreme Court held that “When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.”

Also in “Shudhakar Versus State Of M.P, AIR 2000 SC 2602”,the Hon’ble Supreme Court laid down that “This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters.”

Few Important JUDICIAL PRONOUNCEMENTS

In the case “PakalaNarayana Swami Versus Emperor, (1939) 41 BOMLR 428”, the Hon’ble High Court clarified that the statement of a deceased which explains the transaction that resulted in his death, is admissible as a dying declaration under section 32(1) of the Indian Evidence Act, notwithstanding that the deceased had no expectation of death at the time he made the statement.

In “Laxman Versus State of Maharashtra, AIR 2002 SC 2973”, the Hon’ble Supreme Court has observed that “The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement.

It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.

Normally, therefore, 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.

In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording.

Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

In the case titled as “Kushal Rao versusThe State Of Bombay1958 AIR SC 22”, the Hon’ble Supreme Court has laid down the following principles relating to the admissibility of dying declaration such as:

(1)That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

(2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

(3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

(4) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

(5) That 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, and, 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 and human character; and

(6) That 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 at night; whether the capacity of the 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-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Thereafter, in “Harbanssingh v state of Punjab, 1962 AIR 439”, the Hon’ble Supreme Court held that,“It must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon.”

Can a conviction be solely based upon dying declaration?

Munnu Raja &AnrVersusThe State of Madhya Pradesh, 1976 AIR 2199

In this case, the Hon’ble Supreme Court laid down that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

Smt. PanibenVersus State of Gujarat,(1992)2 SCC 474

In this case the Hon’ble Supreme Court held that “Once the Court is satisfied that the declaration was true and voluntary. Undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.The rule requiring corroboration is merely a rule of prudence.”

State of U.P VersusVeerpal and Anr, Criminal Appeal No.34 of 2022

In this recent case,by placing reliance on Munnu Raja &Anr Versus The State Of Madhya Pradesh, 1976 AIR 2199, Smt. Paniben Versus State of Gujarat,(1992)2 SCC 474, “KushalRao Versus The State Of Bombay 1958 AIR SC 22”,the Hon’ble Supreme Court upheld the conviction order made by the Trial Court and held that “If the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration.”

The State of Uttar Pradesh VersusSubhash @ Pappu, CRIMINAL APPEAL NO. 436 OF 2022

The Hon’ble Supreme Court in this present case while referring to the Judgment laid down under “Laxman Versus State of Maharashtra, AIR 2002 SC 2973”has held that there is no absolute proposition of law that in a case when at the time when the dying declaration was recorded, there was no emergency or any danger to the life, the dying declaration should be discarded as a whole.

Conclusion

A famous poet and dramatist of the 16^th Century, William Shakespeare in his play Richard II said:

“Where words are scarce, they are seldom spent in vain, 

For they breathe truth that breathe their words in pain.”

The rationale behind admissibility of dying declaration is that a person who is at the point of death and when even a shadow of continuing in this world is practically over then in such a case, possibility of falsehood is vanished. Great solemnity and sanctity is attached to the words of a dying man.

Keeping in view the above decisions, it is recommended that this species of evidence must be recorded with extreme care and precaution in order to retain its reliability and worthiness. Moreover, if the dying declaration is excluded from admissibility, then in such a case, it may lead to miscarriage of justice as sometimes situation may arise where victim is the only eye-witness. Therefore, in such cases exclusion of his/her statement would leave the court without a crap of evidence and a culprit may remain unpunished.