DYING DECLARATION

Introduction

The similarity of instant death is considered the best guarantee of the truth of the declaration made by a dying person. A dying statement is made by a conscious individual who believes that death is imminent and communicates information about the cause or circumstances surrounding it.  This information can be admitted as evidence in some cases and serve as a cornerstone for a successful judicial process, or without outcome, and subsequent conviction of the alleged author.

The declaration of death is based on the maxim “Nemo moriturus praesumitur lie”, i.e., a man will not meet his creator with a lie in his mouth. No time is given in the courts due to the fact that the person providing this evidence is not telling his or her experiences but that of another person and that they cannot be examined to verify the facts. The declaration of death is an exception to this rule because, if this evidence is not considered, the purpose of justice will be lost in certain situations where there may be no other witness to the crime except the person who has died since. Sometimes it’s the best proof in such situations.

Its admissibility is explained in section 32 (1) of the Indian Evidence Act. According to this section when a person makes a statement about the cause of his death, or in any of the circumstances of the transaction that led to his death, in the cases where the cause of that person’s death is questioned. Such statements are relevant regardless of whether the person who did it expected death or not. An information lodged by a person who died subsequently relating to the cause of his death, is admissible in evidence.  

Medical Condition of victim

The most important point to consider is that the victim was in a suitable mental condition to give the declaration when the registration began and remained in the appropriate mental condition until the registration of the declaration was completed. Simply stating that the patient was fit will not serve the purpose. This can best be certified by the doctor who knows the patient’s condition better. But even in conditions in which it was not possible to take shape from the doctor, the dying statements retained their full holiness if there are other witnesses to testify that the victim was in such a mental condition that did not prevent him from making statements. 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.

Recording of dying declaration

Best form of recording of dying declaration is in the form of questions and answers. If it is in the shape of narrations it is still good because nothing is being prompted and everything is coming as such from the mind of the person making it. If a person doesn’t have the ability of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of declaration is valid. Whenever the dying declaration is made in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. It is preferred that it must be written in the vernacular which the patient understands and speaks. It would be better if it is recorded by the magistrate but if there is no time to call the magistrate due to the deteriorating condition of the victim it can be recorded by anybody e.g. public servant like doctor or any other person. Courts discourage the recording of declaration by the police officers but if there is nobody else to record it dying declarations written by the police officers are also considered by the courts. If these are not recorded before the magistrate it is better that signatures of the witnesses are taken who are present at the time of recording it. The court must be pleased that the deceased was mentally fit to make the statement and victim had the opportunities to observe and identify the accused. The victim should not given the statement under any influence. Once, the court is satisfied that the dying declaration is true, the conviction can be upheld and there is no need for further corroboration.

Recording can be made in following language

The court cannot rule out the dying statement based on the language. It can be registered in any language. Although the deceased released the statement in Urdu, Hindi, Punjabi, it was considered that this statement could not be discarded on the grounds of language alone or on the fact that it was recorded in Urdu. Where the declaration was in Urdu and the magistrate recorded it in English, but took the precaution of explaining each declaration to the deceased by another person, it was believed that the declaration was a valid declaration of death.

FIR as dying declaration

Where an injured person lodged the FIR and then died. It was held in K. Ramchanda Reddy v Public Prosecutor to be relevant as dying declaration

  • The death of the person in must while making the statement , if the death is not the result, his statement is inadmissible as dying declaration, but might be relied on u/s 157 to corroborate his testimony of contradict him u/s 145. It can corroborate the evidence in court u/s 6 &8.
  • Cause of death of the deceased must be in question.
  • Expectancy of death is not necessary.
  • Whatever may be the nature of the proceeding the civil or criminal nature where the death of the person deceased is in question.

More than one dying declaration

When there are two dying declarations then there was inconsistency between them and there was no other evidence to prove the prosecution case, it was not safe to act solely on the said declarations to convict the accused persons. Where two dying declarations which may give contrary versions, one dying declaration duly recorded by the doctor in presence of two other doctors stating that she was burnt by her mother-in-law and husband for failure to bring dowry. Second declaration not proved by adequet witness, cannot be relied upon, and accused convicted on the dying declaration recorded by doctor.Where the bride recorded two declarations, one to a police officer and other to a Magistrate, they being similar in material factors, evidence accepted though minor discrepancies were there.

In Kamla v. State of Punjab, four dying declarations were made by the deceased. One of them indicated the incident as an accident. The accused (mother-in-law of the deceased) had been convicted on the basis of another declaration implicating her. The court also found glaring inconsistencies as far as naming the culprit was concerned. On facts it was held that the conviction cannot be based upon such declarations. Where there are more than one declaration, the one first in point of time should be preferred.

Person made declaration Survived

It is trite law that while the maker of a purported dying declaration survives, the same is not statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Cr.P.C. It can be used u/s 157 of the evidence Act for the purpose of corroboration and under Section 155 of the evidence Act for the purpose of contradiction. It was held in Tahsildar Singh v. State that the Court will be prevented from taking notice of a dying declaration of a person who has survived and has not been examined in the case.

Conclusion

Since the declaration of death contains the final words of the person who dies related to the causes of death of that person or to the situation that leads to the death of that person, it is a material proof. Every attempt should be made to keep it complete from all sorts of impurities. It should be free from any customary human error. The conditions that may diminish the rest of the trust of the dying declaration have been postponed; it must very well be safely and accurately assumed that the dying declaration must be given on probation after the true validation and following confirmation of the condition that led to the declaration dying.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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