Nemo Moriturus Praesunitur Mentire- This principle states that, a man after death will not be able to encounter his maker (god) with a lie in his mouth.
A Dying Declaration is a declaration made by a person, as he is dying that states the reason for his death. The dying person’s statement can be circumstantial or reveal the reason for his death. As a result, the only declaration made immediately before a person’s death is known as the Dying Declaration. The person who is aware of Compos Mentis and is aware that death is imminent may make a declaration stating the cause of his death, which will be admissible and considered as evidence in court. The deceased person’s declaration can be made orally, in writing, or by their actions. . The Indian Evidence Act of 1872 deals with dying declaration in Clause (1) of Section 32.
What is the validity of his declaration if the declarant survives?
When a dying declaration is made but the declarant does not die, the question regarding the validity of declaration arises. Only when the victim/declarant dies is the statement considered as a dying declaration. If the declarant does not die, he or she can be utilized as a witness against the accused in court and the statement cannot be used as a dying declaration. If inspected, it might be used to verify his testimony under Section 158 of the Indian Evidence Act, 1872.
Forms of Dying Declaration:
A dying declaration can be made orally or in writing. Sections 32 and 33 of the Evidence Act allow exceptions to the rule that oral evidence is always directly admissible. Even so, they are exceptions to the rule that hearsay evidence is not admissible. First-hand hearsay evidence and second-hand hearsay evidence are two types of hearsay evidence. First-hand hearsay testimony is required to be proved, which necessitates corroboration and, in some cases, oaths and cross-examination by the opposing side. The derivative evidence is second-hand hearsay evidence. When he is not available, these are the other person’s evidence rather than the actual (best evidence). For the sake of circumstantial genuineness, this additional person is not obliged to take an oath or cross-examine the document. In the case of Queens Empress v. Abdula[i], this was held that gestures are also involved in form of dying declaration.
There is no standard format for making a dying declaration. In the case of Sant Gopal v. State of U.P.[ii], it was decided that a question-and-answer format and narration are the finest ways of dying declaration. However, the deathbed declaration is incomplete unless it includes all important facts, identities, and circumstances that led to the person’s death.
Who can record the dying declaration?
When the declarant makes the declaration, it is critical that he be in a sound frame of mind.
The best type of dying declaration would be the one recorded by the Magistrate. However, anyone can record the dying declaration, according to Supreme Court standards. A dying statement can be recorded by public officials or by a doctor if the victim is hospitalized and wants to make a statement. If the victim is seriously burned or injured and wants to make a statement, the doctor can also record and take note of that remark. A person with 100% burns can make a statement, and relying on a dying statement does not require a doctor’s certificate. It can also be made for a relative or family member, and in legal terms, it serves the same purpose. Courts discourage police officers from documenting the dying statement, but if there is no one else to record it, the dying statements written by police officers are considered by the courts. If the statements are not recorded by the magistrate, it is preferable to take the signatures of the witnesses present at the moment of recording the dying statement to make them admissible.
Dying Declaration: English v Indian law scenario
This dying declaration is used in English law for homicide and men’s laughter, but it is used in India also for suicide. It is only applicable in criminal law when the death of the declarant is in question in English law, while it is admissible in Indian law not only in criminal but also in civil matters even when the death of the declarant is not in question. Although apprehension or expectation of actual death is significant in English law, it is not required under the Indian Evidence Act.
Apprehension of death required or no?
There must be expectation of death for the dying declaration to be admissible in court in English Law but this is not the case in India.
Eg: R is the daughter in law of S does cruelty to R. R wrote a letter to her father F about the cruelty done to her by S. After a few months the dead body of A was found in her bedroom. In this instance letter given to F by R can be used as a dying declaration however it is required to corroborate the evidence.
It was held in the case of Kulwant Singh v. State of Punjab[iii] that apprehension to death and a death statement to the judicial magistrate are not required.
Sharad Bhirdi Chand Sarda v. State of Maharashtra[iv] is one of the cases in which the court declared that the person making a declarative statement does not have to be expecting to die.
Corroboration of Dying Declaration:
The Supreme Court stated in Ramnath v State[v] that an accused’s conviction is not secure based solely on evidence provided in a dying statement, because such a statement is not subjected to oath and cross-examination, and because the person making such a declaration may be physically and mentally confused at the time and may rely on his imagination while making the statement.
In State of U.P. v. Hum Sagar Yadav[vi], it was decided that if the dying declaration is found to be true and voluntary in the eyes of the court, the case can proceed without further evidence. As a result, while employing a dying declaration as evidence, the satisfaction of the court is required.
Kushal Rao v. the State of Bombay[vii] laid some important principles regarding dying declaration:
- There is no rule of law or prudence that a dying declaration cannot act without corroboration, so the authentic dying declaration does not require any.
- A dying declaration is not inherently poor evidence, but if the court is not convinced of its authenticity and circumstances, it can rely on other supporting evidence.
- Every court must examine the circumstances surrounding the recording of a dying declaration, such as whether the room was properly lit, the person giving the statement was in the right frame of mind, the declaration was made without delay, or the declaration was inconsistent with the facts and circumstances of the case, or if there were any circumstances to instruct the victim on what to explain while declaring a statement.
In the law of evidence, a dying declaration plays an important role. Even when a dying pronouncement is made, it should not be made under duress or pressure, and it should be free of any bias or undue influence. There are a number of factors that must be met in order for the dying declaration to be effective, as it is the weapon that condemned the accused and served as solid evidence. In our Indian court, the admissibility of a dying declaration was upheld because the law assumes that a man will never lie in Leterm Mortem, i.e. in his final words, because no one wants to meet their maker with a lie on his lips. This is because a man who is going to die, finish with all his demands and wants and his interest is no more intense for self deeds therefore he seldom lies. If the dying declaration is proved to be made maliciously, the court has the authority to reject it.
- Akash R. Goswami, Dying Declaration, Blog iPleaders, https://blog.ipleaders.in/dying-declaration-2/
- Faraz Masaud Siddiqui, Evidentiary Value of Dying Declaration, Law essential, https://lawessential.com/criminal-law/f/evidentiary-value-of-dying-declaration
- Prime Legal, Dying Declaration, Prime Legal, https://primelegal.in/2021/03/24/dying-declaration/
- Mohd Aqib Aslam, Dying Declaration, Legal Services India, https://legalserviceindia.com/legal/article-3331-mohd-aqib-aslam.html
- Khushi Agrawal, Dying Declaration, Blog iPleaders, https://blog.ipleaders.in/dying-declaration/
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[i] Queens Empress v. Abdula, (1885) ILR 7 All 385.
[ii] Sant Gopal v. State of U.P, 1995 CriLJ 312.
[iii] Kulwant Singh v. State of Punjab, 2004 CriLJ 2217.
[iv] Sharad Birdhi Chand Sarda v. State of Maharashtra, 1984 AIR 1622.
[v] Ramnath v State, AIR 1953 All 59.
[vi] State of U.P. v. Hum Sagar Yadav, 1985 AIR 416.
[vii] Kushal Rao v. the State of Bombay, 1958 AIR 22.