Admissibility of Dying Declaration

    Dying Declaration means words said by a person before his death which formalizes into a declaration made by a person at the time of his death describing the conditions that led to his death. A dying declaration is considered as being the most reliable and credible evidence for it is believed that a person will never lie on his deathbed. The Indian Law believes that a dying man is never lying in his death, and the truth is on his lips at the time of his death.

    Introduction

    In the case of R v. Jenkins[1] the accused was charged with murdering the woman. He targeted her at night, and she identified him since there was enough light in the region. When the Magistrate’s clerk asked her about the suspect, she mentioned Jenkins as the perpetrator of the crime. The clerk then asked her that if she was making a declaration without any hope of recovery, she responded that she was making a statement without any scope for recovery. But when the clerk read the statement before signing it, she told him to add the word ‘at present’ to the statement. In the end, it took the view that it was not a dying declaration in terms of its focus on ‘at present’ indicating the likelihood of her recovery. If the person has the slightest chance to survive, the dying declaration will not be admissible in the court of law.

    The main object of the dying declaration is: –

    (a)   To presume that a person who is about dying will never speak a lie on his deathbed.

    (b)   The person or the victim is the only eye witness and the statement given by him should be considered as evidence and not be excluded.

    Nemo Moriturus Praesumitur Mentire

    The principle on which dying declaration is added as evidence is a legal maxim called Nemo Moriturus Praesumitur Mentire which means a man will never meet his maker with a lie in his mouth. In the case of PV Radhakrishna v. State of Karnataka[2], the Apex court held that the principle on which the dying statement is added as proof in evidence is indicated by a legal maxim Nemo Moriturus Praesumitur Mentire which means that a man will never meet his maker with a lie in his mouth. The information given by a person stating the cause of his death who is subsequently going to die is considered as admissible evidence.

    The suicide note was written before the commitment of suicide also comes under the purview of a dying declaration. In the case of Sharad Birdhichand Sarda v. State of Maharashtra[3], a suicide note was found in the cloth of the deceased. Justice Fazal Ali held that the suicide note should be considered as a dying declaration and it is also admissible as evidence under Section 32 of the Indian Evidence Act as the death referred in Section 32(1) of the Indian Evidence Act includes suicidal besides homicidal death. 

    Parameters for the Admissibility of Dying Declaration

    The Dying Declaration is admissible and represents an exception to the Hearsay law, which forbids a statement made by someone other than the person who repeats the statement at the time of the trail because of his dishonesty. The person who gives the declaration of death must be conscious at the time the declaration is made, or it would not be admissible in court.

    Section 32 of the Indian Evidence Act applies to the admissibility of the dying declaration and is an exception to the general rule of hearsay evidence. It  states that any declaration, written or verbal, of the relevant facts made by a person who is dead, or who couldn’t be identified, or who has become incapable of providing evidence, or whose presence cannot be obtained without a delay or expense which, in the circumstances of the case, appears to the Court to be unreasonable, is itself relevant facts in different circumstances.

    Specifically, Section 32(1) talks about the Dying Declaration. As according to this section when any person made a statement about any circumstances which result in his death and his death comes into question then such statements are relevant whether the person was present or not at the time when they are made under an exception of death and whatever may be the nature of the proceedings in which his/her death became questionable.

    In Ulka Ram v. State of Rajasthan[4]case, the Apex Court stated that if a declaration is made by a man or women in a situation where there is no chance of his or her survival or as to any situation which will result in his or her death and the death is questionable then in that situation if any statement is made then it will be considered as dying declaration under the law and it will equally be admissible as evidence.

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    Format of Dying Declaration

    There is no particular format of the Dying Declaration. But the most appropriate form of dying declaration shall run in a question and answer form. Whenever a dying declaration is noted in the format of question and answer then it should always be done in precaution as exactly what questions are asked and what answers are exactly given by the victim and those should be written only.

    The dying declaration made by the victim can also be in the form of:

    1. Written Form or Verbal FormThe Supreme Court has given the direction that a dying declaration should be recorded in question answer form but it doesn’t give any prescribed form.[5] In the case of Alisandiri v. R[6], it was held that verbal doesn’t only means oral declaration but it also includes gestures in it as in the situation of incapability of a person to speak at that time.

    2. Gesture and Sign In the case of Queen Empress v. Abdullah[7] the accused had cut the throat of the victim and because of that, she was not able to speak so she indicated the name of the accused by the sign of her hand. It was held by the Allahabad Bench that if the injured person is not able to speak then he or she can give the dying declaration in the form of signs and gestures in the response to the questions asked.

    3. Language of StatementThe court cannot reject the dying declaration based on the language. In the case of Biju Joseph v. State of Kerala[8], the High Court of Kerala held that the dying declaration given by the victim in her language would not decrease the admissibility of the dying declaration merely on the ground that it was recorded in a different language. The court records the statement or evidence in the language of court even when the witness deposes in their language. Judicial officers are used to translating the statement of witness from their language to the language of the court. Such a translation process will not hamper the admissibility or credibility of the statement recorded.

    4. FIR as Dying Declaration In the case of Munnu Raja & Anr. v. State of MP[9], the Supreme Court of India held that the statement given by the injured person which is recorded as FIR can be considered as a dying declaration and be admissible under Section 32 of the Indian Evidence Act. It additionally held that it is not important that the dying declaration covers the complete incident or narrates the case history. Corroboration is not needed as dying declaration can be the sole evidence for a conviction.

    Who can Record a Dying Declaration

    1. The best person to record the dying declaration is the Magistrate.
    2. If it is not possible to wait for the Magistrate then keeping in view the serious condition of the victim, it can be recorded by any public servant like doctor or any other.
    3. A dying declaration recorded by the police officer doesn’t need to be always invalid.
    4.  If any document is not recorded by the Magistrate then it is better to take the sign of two witnesses who are present at that time.

    Important fact to be remembered at the time of recording the dying declaration:

    1. The declarant was in a fit mental condition while giving the dying declaration and remains fit mentally until the recording is done.
    2. The certificate of fit mind can be certified by the doctor.
    3.  If the doctor is not available then two witnesses can testify that the declarant was in a fit state of mind.
    4. The dying declaration made by the declarant should not be under any influence of anyone or prepared by prompting, torturing, or imagination. If the dying declaration becomes questionable then it will need corroboration.
    5.  If the declarant made more than one dying declaration and all of them have the same essence then they will have their full value but if there is any contradiction or inconsistency then that declaration will lose its value.

    Conclusion

    The Dying Declaration is one of the most important sources of evidence that can be submitted to the court as a statement made by a dying person serves as  the primary basis for the conviction of the accused. The declaration of death to be made should be reported with all the precautions and techniques specified by the court without interfering with it. If the dying declaration made by the victim is incomplete, it is very likely that the court will reject it. Even so, it is the absolute discretion of the court to evaluate whether or not the dying declaration recorded is reasonable.

    References

    [1] [2002] VSCA 224.

    [2] AIR 2003 SC 2859.

    [3] 1984 CriLJ 1738.

    [4] Appeal (crl.) 749/2000.

    [5] V.P. Sarathi, Law of Evidence 88 (Eastern Book Company, 7th edn., 2017).

    [6] LR (1937) AC 220.

    [7] (1885) ILR 7 AII 385.

    [8] Appeal (crl.) 108/2009

    [9] 1976 SCR (2) 764.


    BY RUPAL SRIVASTAVA | BANASTHALI VIDYAPEETH

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