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.
This is based on the maximum ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth. Our Indian law recognizes this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ It is an exception to the principle of excluding hearsay evidence rule. Here the person (victim) is the only eye-witness to the crime, and exclusion of his statement would tend to defeat the end of justice. Section 32 of Indian Evidence act deals with the cases related to that person who is dead or who cannot be found.
Section 32: Cases in which statements of relevant fact by person who is dead or cannot be found.- statement, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expanse which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
- When it relates to cause of death.
- Or is made in course of business.
- Or against interest of maker.
- Or gives opinion as to public right or custom or matters.
- Or relates to existence of relationship.
- Or is made in will or deed relating to family.
- Or in document relating to transaction mentioned in section 13, clause (a).
- Or is made by several persons and expresses feelings relevant to matter in question.
But here, we are studying about ‘dying declaration’ which deals with the cases relate to cause of death.
It is mentioned in sub-section (1) of section 32 of Indian Evidence act.
Section 32 (1) When it relates to cause of death- 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, they were made, under exception of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration wrong under consideration are relevant facts.
In Ulka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statement in law are commodiously called dying declaration.”
In the case of Queen-Empress v. Abdullah Accused had cut the throat of the deceased girl & 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 the Allahabad High Court “ If the injured person is unable to speak, he can make dying declaration by signs & gestures in response to the question.” In another case The Apex Court observed that “the value of the sign language would depend upon as to who recorded the signs, what gestures & nods were made, what were the questions asked, whether simple or complicated & how effective & understandable the nods & gestures were.”
Where the deceased made the statement in Kannada & Urdu languages, it was held that the statement could not be discarded on that ground alone, or on the ground that it was recorded only in Kannada. Where the statement was in Telugu & the doctor recorded it in English but the precaution of explaining the statement to the injured person by another doctor was taken, the statement was held to be a valid dying declaration.
The Apex Court emphasized the need for corroboration of such declaration particularly in a case of this kind where the oral statement was made by the injured person to his mother & she being an interested witness. Such declaration has to be considered with care & caution. A statement made orally by the person who was struck down with a lathi blow on head and which was narrated by the witness who lodged the FIR. as a part of the F.I.R. was accepted as a reliable statement for the purpose of Section 32.
Evidentiary Value of Dying Declaration:
In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was observed as under:-
“The dying declaration is undoubtedly admissible under section 32 & not being statement on oath so that its truth could be tested by cross-examination, the court has to apply the scrutiny & the closest circumspection of the statement before acting upon it.
While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination.
The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe & identify his assailants & that he was making the statement without any influence or rancor. Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found the conviction even without further corroboration.”
In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to dying to dying declaration :
- There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.
- A dying declaration is not a weaker kind of evidence than any other piece of evidence;
- Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made
- 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, &, 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 & human character.
- 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 in the night, whether the capacity of 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; & that the statement had been made at the earliest opportunity & was not the result of tutoring by interested party.”
“Dying Declaration” is a legal concept refers to that statement which is made by a dying person, explanation the circumstances of his death.
LORD LUSH, L.J., quoted that “A dying declaration is admitted in evidence because it is presumed that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips. But the person making the declaration must entertain settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do.”
LORD EYRE, C.B., also held that “The principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the part is at the point of oath, & when every hope of this world is gone; when every motive of falsehood is silenced, & the mind is induced by the most powerful considered by law as creating an obligation equal to the which is imposed by a positive oath administered in the court of justice.”