1. Introduction:
A Dying Declaration means the statement of a person who has died explaining the circumstances of his death. It can be said
to be a statement made by a mortally injured person, indicating who has injured
them and/or the circumstances surrounding their injury. The injured is aware
that he/she are about to die and while the declaration is hearsay; it is
admissible since it is believed that the dying person does not have any reason
to lie.
Such a statement can be proved when it is
made by a person as to the cause of his death, or as to any of the
circumstances of the transaction that resulted in his death. The statement
will be relevant in every case or proceeding in which the cause of that
person’s death comes into question.
2. Clause (1) of section 32 of the
Evidence Act
Cases in which statement of
relevant fact by person who is dead or cannot be found, etc., is
relevant.- Statements, written or
verbal, of 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 expense which, under the circumstances
of the case, appears to the Court unreasonable, are themselves relevant facts
in the following cases.
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, in cases in which the cause of that
person’s death comes into question.
Such
statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death comes into question.
3. As to because of his death
Under Section 32(1), the
statement of an injured person who subsequently dies will be relevant only if
it is made by him as to the cause of his death. It must not relate to the cause
of death of any other person’s death. In Ratan Gond v. State
of Bihar[1]
the accused was charged with the murder. One of the pieces of evidence
against him was the statement of the deceased’s sister, who also died subsequently.
As a result of her statement, the victim’s dead body was recovered. The
question was whether her statement was relevant? The Supreme Court held that it
was not admissible under section 32(1) as it did not relate to the cause of her
own death but to that of her sister.
It is necessary that the
death must be caused in order to admit pieces of evidence under the section. In case it
is proved that he died of some other cause, it would not be admissible under
clause (1) of section 32. For example, the prisoner was convicted on the basis
of the dying declaration of a person who received two shot wounds during the
occurrence. Although his dying declaration was recorded, he died 20 days
after he had left the hospital. There was no evidence to show that he died of
the injuries received by him at the said incident. On the question of
admissibility of the dying declaration, in Moti Singh v. State
of U.P[2] The Supreme court held that
when the dead person in the present case was not proved to have died as a
result of injuries received in the incident, his statement cannot be said to be
a statement as to the cause of his death or as to any of the circumstances of
the transaction which resulted in his death. So, they held his statement to be
inadmissible under section 32.
4. Circumstances of the transaction that resulted in his
death
the Privy Council in the Case of Pakala
Narayana Swami v. The
Emperor[3]Their
Lordships of the Privy Council held them to be
admissible because it related to the circumstances of the transaction which
resulted in his death and so, it was rightly admitted under section 32(1).
In this case, the observation of Lord Atkin was:
”The phrase
‘circumstance of transaction’, no doubt, conveys some limitations. It is not as
broad as the analogous use n ‘circumstantial evidence’ which includes the
evidence of all facts. It is on the other hand narrower. Circumstances must
have some proximate relation to the actual occurrence though as for instance in
a case of prolonged poisoning, they may be related to dates at a considerable
distance from the date of actual dose.”
5. Nemo
moriturus praesumitur mentire
The
meaning of this doctrine is that “No one at the point of death is presumed to
lie because a man will not meet his Maker with a lie in his mouth”.
Is the philosophy in law underlying admittance in evidence of dying
declaration? A dying declaration made by the person on the verge of his death
has a special sanctity as at that solemn moment, a person is most unlikely to
make any untrue statement. The shadow of impending death is by itself the
guarantee of the truth of the statement made by the deceased regarding the
causes or circumstances leading to his death. Once the statement of
the dying person and the evidence of the witnesses testifying to the same
passes the test of careful scrutiny of the Courts, it becomes a very important
and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration,
by itself, can be sufficient for recording conviction even without looking for
any corroboration.
6. Admissibility
Unless the statement of a
dead person would fall within the preview of Section 32(1) of the Indian
Evidence Act, there is no other provision under which the same can be admitted
in evidence. In order to make the statement of a dead person admissible
(written or oral), the statement must be as to the cause of her death or as to
any of the circumstance of the transactions which resulted in her death, in
cases in which the cause of death comes into question.
7. Forms of dying declaration
A dying declaration may
be in the following forms:
1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case” Queen vs. Abdull[4]
it was held that if the injured person is unable to speak, he can make dying
declaration by signs and gestures in response to the question.
4. If a person is not capable of speaking or writing
he can make a gesture in the form of yes or no by nodding and even such type of a dying declaration is valid.
5. It is preferred that it should be written in the
vernacular which the patient understands and speaks.
6. A dying declaration may be
in the form of narrations. In case of a dying declaration is recorded in the
form of narrations, nothing is being prompted and everything is coming as such
from the mind of the person making it.
7.1. Essential
Conditions for the Admissibility of Dying declaration
1. To whom the statement is to be made and its form:-
A statement of the dying declaration could be made to any person – a doctor, a Magistrate, a
friend or near relative, a police officer. However, a statement recorded by a Magistrate
or doctor is considered more reliable, and that recorded by a police officer or
close relative not (require more scrutiny)
2. The person making
the statement must have died:
In Ram
Prasad v. State
of Maharashtra[5] the Supreme court held that observed that at the time when declarant gave the statement
he would have been under the expectation of death but that is not sufficient to
wiggle it into the cassette of section 32 of Evidence Act, 1872. As long as the maker of the statement is alive it would remain only in the realm of a
statement recorded during the investigation. It was held, that if a person making a
dying declaration survives his statement cannot be used as evidence under
section 32 of the Act.
3. Statement
must relate to the cause of his death or the circumstances of the transaction
which resulted in his death;-
The circumstances of transaction resulting
in death must bear proximate relation to the cause of death or actual
occurrence. The general expressions indicating fear or suspicion, whether of a
particular individual or otherwise and not directly related to the occasion of
death will not be admissible. But, statements made by the deceased that he was
proceeding to the spot where he was in fact killed, or as to his reasons for so
proceeding, or that he was going to meet a particular person, would to each of
them be circumstances of the transaction.
4. The statement must be complete and consistent:-
In
Kusa v. State of Orissa[6]the court was on the opinion that if a person fails to
complete the main sentence a dying declaration would be unreliable. However, if the deceased has
narrated the full story, but fails to answer the last question as to what more
he wanted to say, the declaration can be relied upon.
5. Declarant must be
competent as a witness:-
In R. v. Pike[7]the court was on the opinion that It is necessary for the
relevancy of a dying declaration that the declarant, if he had lived on,
would have been a competent witness. Thus, in a prosecution for the murder of a
child, aged four years, it was proposed to put in evidence, as a dying declaration,
what the child said shortly before her death. The declaration was held to be
inadmissible.
8. English Law
Vis-a Vis Indian Law
·
Under English Law,
a dying declaration is admissible only on a criminal charge of homicide or
manslaughter, whereas in India it is admissible in all proceedings, civil or
criminal.
·
Under the English
Law, credence and the relevancy of a dying Declaration is only where a person
making such a statement is in a hopeless condition and is expecting imminent
death. So under the English Law, for its admissibility, the declarant should
have been in actual danger of death at the time when they are made, and that he
should have had a full apprehension of this danger and the death should have
ensued. The admissibility rests on the principle that a sense of impending
death produces in a man’s mind the same feeling as that of a conscientious and
a virtuous man under oath. If the evidence in a case reveals that the declarant has
reached this state while making a declaration then within the sphere of Indian
Law, while testing the credibility of such dying declaration, weightage can be
given, of course, depending on the other relevant facts and circumstances of
the case. However, under Indian Law, the dying declaration is relevant
whether the person who makes it was or was not under the expectation of death at
the time of declaration.
·
Under the English
Law, the declaration must have been competent as a witness, thus, the imbecility of
tender age will exclude the declaration. It is, however, doubtful whether this
rule is applicable in India. The credit of such a declarant may be impeached in
the same way as that of a witness actually examined in a court.
9. Conclusion
The
purpose of the dying declaration is to make admissible that evidence which were
made by the accused person at the time of his death. The presumption is that
the person who is going to die never lie. However, it is necessary that the
death must be caused by the same transaction of the business in which respect
the declaration is made.
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