Dying Declaration: Is it a substantial piece of evidence?
From the name itself, it is clear that dying declarations are the statement made by a declarant about his/her cause of death who is unable to present before the court of law because of the imminent possibility of death[i]. According to Section 32(1) of the Indian Evidence Act, 1872, 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 person’s death comes into question. Dying declarations are one of the most substantial pieces of evidence and are interdicted as Hearsay evidence.
Dying declarations are based on the doctrine of ‘Leterm Mortem’ that means ‘words said before death’ [iii]. It can be a statement which caused the death or it can be any circumstance which evidently proves the cause of death. In the leading case of Pakala Narayana Swami v. Emperor [iv], the expression ‘circumstances of the transaction which resulted in his death’ has been rhetorically described.
In this case, the deceased before leaving his house, to go to Berhampur told his wife that he was going to Pakala Swamy’s house in Berhampur to demand him to pay back the amount given by him. Later on, his dead body was found in a trunk cut into several pieces. The Privy Council held that the statement made by the deceased to his wife prior to leaving his house was a statement having the evidentiary value and one of the circumstances which caused the death of the deceased. Thus, the expression ‘any of the circumstances of the transaction’ which resulted in his death has a broader interpretation[v].
INGREDIENTS OF DYING DECLARATION
Before delving deep into the concept and procedure for recording dying declaration, it is very much crucial to know about the essentials of Dying Declaration:-
1. The person declaring the cause of his death must be capable of understanding the statement stated by him when recording of the statement started and remained in such state of mind until the recording of dying declaration is concluded.
2. The understanding of the declarant’s state of mind must be substantiated and certified by a doctor.
3. The statement has an evidentiary value only when it is not influenced by any person by prompting or tutoring.
4. Any statement which is capable of being dubious will need corroboration in order to justify the evidentiary value.
5. If a declarant made more than one dying declaration and these declarations are not at compliance with each other and are inconsistent, then such declarations ceased to have the evidentiary value.
6. Any statement made by a person of unsound mind is inadmissible in nature. . Variance in the Indian law and English laws
In the English Law, it is very pertinent for the admissibility of the dying declaration that the declarant should have been in an actual danger of death when he made the statement. There must be complete trepidation about death. Death should have eventuated. In the case of Queen Empress v. Abdullah [vi], it was held that conduct is relevant as dying declaration. In the case of a statement to be attracted under section 32(1) of the Indian Evidence Act, 1872 it is not at all important that the death should have a catena to the statement made by a declarant. It is also not needed that the victim who made the statement should relate to the conditions surrounding the event which is the ultimate reason for the cause of the death.
In Uka Ram v. State of Rajasthan[ii] , the Apex Court held that, “when a declaration is made by way of a man or a woman as to the purpose of his/her demise or as to any situations of transaction which resulted into his death, in case in which purpose of his dying comes in question is admissible in evidence, such statement in law are compendiously known as dying declaration.”
WHO MAY RECORD A DYING DECLARATION?
A Dying Declaration can be recorded by any person. There is no restriction as to the recording of a dying declaration. However, a dying declaration recorded by a judicial magistrate, is more reliable and credible[vii]. In the case of Ram Singh v. Delhi administration[viii], , it was held that a dying declaration which is cogent, clear and corroborated can never be accepted as evidence just because it was recorded by a Police Officer.
In the case of State of Uttar Pradesh v. Shishupal Singh [ix], it was held that a dying declaration imbrued with so many dubious circumstances which caused uncertainties about its authenticity can never be considered as a base for the conviction.
PROCEDURE FOR RECORDING DYING DECLARATION
There is no particular form prescribed for recording a dying declaration. A dying declaration can be oral, it can be written, it can be in the form of any sign or it can also be in the form of a gesture indicating the cause of death. Such declaration can never be ceased to have the evidentiary value merely because of the language, but the declaration must serve as a good piece of evidence. It is not pertinent that the dying declaration must be recorded in question answer form. In the case of K. Ramchand Reddy v. Public Prosecutor[x] , it was held that FIR can also be treated as a dying declaration.
The doctrine on which the dying declaration is admitted as evidence is ‘nemo moriturus praesumitur mentire’ which means a man will not meet his maker with a lie in his mouth. In Indian Law it is a believed fact that a ‘dying man can never lie’ or ‘truth sits upon the lips of a dying man’. As a result, it is an exception to the Hearsay rule, which prohibits the use of a statement made by someone other than the person who reiterates while stating it under oath during a trial, because of its inherent untrustworthiness. No matter how unreasonable, if the person who made the dying declaration had the slightest hope of recovery, the statement is not admissible into evidence.
In the case of Babulal v. State of Madhya Pradesh [xi], the Supreme Court stated that ‘A person who is facing imminent death, with even a shadow of continuing in this world practically nonexistent every motive of falsehood is obliterated’. Similarly, in the case of Kundala bala Subrahmanyam v. State of Andhra Pradesh [xii] , the court stated that ‘dying declaration made by a person who is in the verse of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement’.
Through a series of cases the Supreme Court has culled out following principles related to the evidentiary value of dying declaration:
1. The conviction can be done on the sole basis of a dying declaration. It needs no justification since the shadow of imminent death is by itself the guarantee of the truth of the statement made.
2. Each case must be judged on its own facts keeping in view the circumstances in which the dying declaration was made.
3. A dying declaration stands on the same foothold as another piece of evidence & has to be judged in the light of surrounding circumstances
4. Wherever possible, a competent Magistrate should record the dying declaration in the form of questions and answers in the words of the maker of the declaration
5. The Court is required to be satisfied, that there was no element of training, the deceased was in a fit state of mind and the statement was not an artifact of his imagination[xiii].
The unrivalled importance attached to dying declaration is due to the fact that it guides a court in finding the truth and reliability of facts. But such declarations are also eclipsed from established doctrines of evidence and the truthfulness of such evidence cannot be cross examined. The courts have formulated some criterion of caution to dodge any misuse of the statement by any of the parties. If the statement is clear, coherent, uninfluenced, unguided and expounds the whole prosecution process and serves as a good reliable source of evidence, then nothing is more trustworthy than this kind of evidence. Our courts have acknowledged this piece of evidence glaringly to prove the fact dealing with the death of a person, but it must be clad with the silhouette of lucidity.
[i] Shipra Arora, Dying Declaration - Section-32(1) of Indian Evidence Act, available at http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-32(1)-of-Indian-Evidence-Act.html
[ii] Uka Ram v. State of Rajasthan 2001(2)CR 416, See this http://d1.manupatra.com/ShowPDF.asp?flname=Uka_Ram_vs_State_of_Rajasthan_10042 001 SCs000254COM8032.pdf
[iii] Anubhav Pandey, Admissibility of Dying Declaration, available at https://blog.ipleaders.in/admissibility-dying-declaration/amp/
[iv] Pakala Narayana Swami v. Emperor [AIR 1939 P.C. 47], See this https://www.casemine.com/judgement/uk/5b4dc24f2c94e07cccd23cf0
[v] Akash R. Goswami, Dying Declaration, https://www.google.com/amp/s/blog.ipleaders.in/dying-declaration-2/amp/
[vi] Queen Empress v. Abdullah (1885) ILR7ALL385, see this https://www.casemine.com/judgement/in/5721afa3607dba2e3c886fd5
[vii] Janhavi Arakeri, Dying declaration, available at https://blog.ipleaders.in/dying-declaration/amp/
[viii] Ram Singh v. Delhi administration AIR 1951 270, 1951 SCR 451 See here
[ix] State of Uttar Pradesh v. Shishupal Singh 2019 (8) SCC 682, See here https://www.legitquest.com/case/state-of-uttar-pradesh-v-shishupal-singh/23FF1
[x] K. Ramchand Reddy v. Public Prosecutor (AIR 1994 1976 SCR 542 1976 SCC (3) 618), See this http://d1.manupatra.com/ShowPDF.aspflname=K_Ramachandra_Reddy_and_Ors_vs_The_Public_Prosecuts760127COM983463.pdf
[xi] Babulal v. State of Madhya Pradesh,(1975 AIR 1378), See this http://d1.manupatra.com/ShowPDF.asp?flname=Babu_Lal_and_Ors_vs_State_of_Madhya_Pradesh_311020s030849COM730340.pdf
[xii] Kundula bala Subrahmanyam v. State of Andhra Pradesh, 1993 2 SCC 684, See this http://d1.manupatra.com/ShowPDF.asp?flname=Kundula_Bala_Subrahmanyam_and_Ors _vs_State_of_Andhs930508COM265179.pdf
[xiii] Mitali Goyal, Admissibility and Validity of Dying Declaration: A Critical Analysis, available at https://www.latestlaws.com/articles/admissibility-and-validity-of-dying-declaration-a-critical-analysis-by-mitali-garg/
ABOUT THE AUTHOR
This blog has been authored by Bhavi Hitesh Shah & Monalisha Singh, both 3rd Year B.A., LL.B. (Hons.) students at ILS Law College, Pune & Chanakya National Law University, Patna respectively.
[PUBLICATION NO. TLG_BLOG_20_3704]